Asevado v. Orr

California Supreme Court Nov 10, 1893 No. No. 18139Published

Before: Harrison

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Holding. The court held that an action for damages from an injunction requires proof of malice and lack of probable cause unless brought against sureties on an injunction bond, where liability is limited to the bond's terms. Consequently, the judgment against the principal was reversed for failure to state a cause of action, while the judgment against the sureties was affirmed.

Issues

Whether an action for damages lies against a plaintiff for improperly suing out an injunction absent allegations of malice and want of probable cause.
Whether a voluntary dismissal of an action constitutes a decision that the plaintiff was not entitled to an injunction for purposes of bond liability.
Whether a joint demurrer to a complaint must be overruled if the complaint states a cause of action against at least one defendant.

Disposition. Reversed in part and affirmed in part.

Quotations verified verbatim against the opinion

“An action on the case will not lie for improperly suing out an injunction, unless it is charged in the declaration as an abuse of the process of the court through malice and without probable cause.”

“The voluntary dismissal of the action by the plaintiffs had the same effect as a decision of the court that they were not entitled to the injunction”

“The judgment against the appellant Orr is reversed, and the judgment against the appellants Bohnert and Walbridge, and the order denying a new trial are affirmed.”

Synopsis

Injunction—action Against Plaintiff—Sureties on Bond—Pleading —Malice—Probable Cause.—A complaint which contains two counts, one for damages against the plaintiff in an injunction suit, and the other against the sureties upon the injunction bond, but which fails to aver either malice or want of probable cause in the issuance of the writ of injunction, fails to state any cause of action against the plaintiff in the injunction suit.

Id.—Dismissal of Injunction Suit—Admission. — The fact that the plaintiff in the injunction suit voluntarily dismissed the action does not show an admission on his part that he had no probable cause for commencing it.

Id.—Malicious Prosecution of Injunction—Action for Damages— Remedy Against Sureties.—An action on the case for damages will not lie for improperly suing' out an injunction unless the complaint charges an abuse of the process of the court through malice and without probable cause. If the act complained of is destitute of these ingredients, the only remedy of the injured parties is an action upon the injunction bond.

Id.—Liability of Plaintiff Upon Bond.—The plaintiff in the injunction suit is not liable upon the injunction bond, if he was not a party to the undertaking.

Id.—Liability of Sureties—Proof Required.—The liability of the sureties upon an injunction bond depends simply upon proof that the injunction was issued, that the defendants suffered damage thereby and that the court has decided that the plaintiff was not entitled to the injunction.

Id.—Voluntary Dismissal—Decision of Court.—The voluntary dismissal of an injunction suit by the plaintiff has the same effect as a decision of the court, that he was not entitled to the injunction.

Id.—Joint Demurrer—Misjoinder of Parties and Causes.—In an action against the plaintiff in the injunction suit and the sureties on the injunction bond, where the second count of the complaint sufficiently stated a cause of action against the sureties, while the first count stated no cause of action against the plaintiff in the injunction suit, a joint demurrer by all the defendants upon the ground that the complaint failed to state facts sufficient to constitute a cause of action; that there was a misjoinder of parties defendant, and that a cause of action upon the case was improperly united with a cause of action upon a special contract, is properly overruled as against the sureties.

Id.—Effect of Joint Demurrer. —A joint demurrer by all of the defendants to an action is properly overruled if the complaint is good as against either of them.

Id.—Joinder of Parties—Appeal—-Harmless Ruling.—A complaint is not necessarily defective in which there is united with some defendants another against whom no liability is alleged or recovery sought, and an order overruling a demurrer for misjoinder of parties defendant does not constitute a reversible error, if the rights of the parties have not been prejudiced.

Harrison, J. The appellant, Thomas Orr, brought an action in June, 1891, against the respondents in the superior court of Siskiyou county, to restrain them from depositing any sand or gravel in ¡North Fork Cornish ditch, and from diverting the waters of Main Greenhorn creek from said ditch during a certain portion of each day; and immediately after the commencement of the action procured a writ of injunction to issue out of the court, which was served on the plaintiffs herein, restraining them, pending the litigation, from doing the acts complained of. For the purpose of procuring the issuance of the injunction the plaintiff, in accordance with the order of the judge therefor, filed an undertaking in the amount of five hundred dollars, executed by the other appellants herein, conditioned “ that in case the said injunction should issue, the said plaintiff, Thomas Orr, would pay the defendant in the said action such damages, not exceeding the sum of five hundred dollars, as the defendants therein might sustain by reason of the said injunction if the said superior court should finally decide that the said plaintiff, Thomas Orr, was not entitled thereto.” In December, 1891, the action was dismissed upon motion of the plaintiff’s counsel, and thereafter the respondents herein brought this action against Orr and the sureties on the undertaking, to recover the damages sustained by reason of the injunction. The complaint contains two counts, one against Orr, claiming the sum of $6,150 for damages resulting from [297]the issuance of the injunction, and the other against the sureties upon their undertaking to respond in the sum of $500 for the amount of such damages. The defendants jointly demurred to the complaint, and their demurrer having been overruled, they answered, and a trial was thereafter had, in which the jury found that the plaintiffs had suffered damages in the sum of $750. Judgment for that amount was entered against the appellant, Orr, and for $500 against the other appellants. From this judgment the defendants have appealed.

1. In Robinson v. Kellum, 6 Cal. 399, an action was brought against the defendant to recover damages for wrongfully suing out an injunction against the plaintiff, and upon the appeal from the judgment rendered therein in favor of the plaintiff the court said: “An action on the case will not lie for improperly suing out an injunction, unless it is charged in the declaration as an abuse of the process of the court through malice and without probable cause. If the act complained of is destitute of these ingredients, then the only remedy of the injured party is an action upon the injunction bond, which is specially provided by the statute as a protection against injury, even without malice,” and reversed the judgment because the complaint failed to aver those facts. To the same effect are the following authorities. (Cox v. Taylor, 10 B. Mon. 17; Manlove v. Vick, 55 Miss. 567; Burnett v. Nicholson, 79 N. C. 548; Hayden v. Keith, 32 Minn. 277; Lawton v. Green, 64 N. Y. 330; High on Injunctions, sec. 1648.) The courts of the state are open to every citizen for the redress of his wrongs, and unless he is at liberty to seek such redress without rendering himself liable in damages to the defendant, in case he shall fail to. establish his complaint, this right would in many instances be a barren privilege. The law has provided that in certain classes of actions a defendant may be restrained during the pendency of the action from enjoying property, or exercising dominion over tho same, where his right

Asevado v. Orr

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