Curtiss v. Bachman
Before: Harrison, McFarland
Synopsis
Injunction—Action on Bond—Counsel Fees and Expenses of Suit.— The liability of the sureties upon an injunction bond is measured by the terms of their contract; and where the damages are limited by the terms of the bond to such as the plaintiff may sustain by reason of the injune, tion, whatever expenses he is subjected to by reason of the suit, or for counsel fees in defending the suit, are not damages within the terms-of the bond.
Id.—Counsel Fees, When Allowed.—Counsel fees incurred by defendant by reason of a preliminary injunction are part of the damages for which he has a right to indemnity; but only such counsel fees as may be incurred after the injunction has been issued, and prior to the determination of the action, can be considered as within the rule, and services of counsel rendered in the trial of the cause are not a portion of the damages sustained by reason of the injunction.
Id.—Services of Counsel before Issuance of Injunction.—Services of counsel employed to resist a motion for an injunction rendered by virtue of an order to show cause why the injunction should not be granted, are not rendered by reason of the injunction, and cannot be recovered in an action upon the injunction bond.
Id.—Unsuccessful Motion to Dissolve an Injunction.—An unsuccessful motion to dissolve an injunction does not authorize a recovery for the expense of counsel fees in making the motion, unless the court suspends its decision on the motion until the hearing of the case.
•Id.—Preliminary Injunction—Effect of Failure to Sustain Action— Waiver of Damages.—It does not follow that because the plaintiff failed to sustain his action at the trial a preliminary injunction was not properly issued; and if, instead of seeking a dissolution of the preliminary injunction, the defendant prefers to defeat the plaintiff in his -action, he waives his right to recover from the sureties any damages -that he may sustain by reason of the issuance of the preliminary injunction.
Id.—Costs.—Costs incurred upon the trial of the action, and upon appeal from the judgment are not within the terms of an injunction bond given for a preliminary injunction.
Id.—Loss of Time—Injury to Business.—The loss of defendant’s time and the injury to his business resulting from the litigation are outside of the undertaking of the sureties upon the injunction bond.
Opinion — Harrison
Harrison, J. In an action brought in the superior court of San Francisco against the appellant by one Nettie Gilman, a preliminary injunction was issued by the court, and the respondents herein were the sureties in an undertaking given on her behalf upon the issuing of said injunction. The condition of the undertaking is: “ In case said injunction shall issue and remain in full force and effect, the said plaintiff will pay to the said parties enjoined such damages, not exceeding the .sum of five thousand dollars, as such parties may by reason of the said injunction sustain, if said superior court finally decide that the said plaintiff was not en[436]titled thereto.” The present action was brought to recover from the respondents the damage sustained- by reason of the issuance of the said injunction. Upon a former appeal in this cause (Curtiss v. Bachman, 84 Cal. 216) a judgment that had been rendered in favor of the plaintiff was reversed, with directions to sustain the defendant’s demurrer to the complaint. Upon the going down of the remittitur the plaintiff amended his complaint, and the cause was tried by the court without a jury, who found that the plaintiff had not sustained any damage by reason of the issuance or continuance of the injunction, and rendered judgment for the defendants. The plaintiff moved for a new trial upon the ground that this finding was not sustained by the evidence, and upon the denial of his motion has appealed therefrom^ and also from the judgment.
The action of Gilman v. Curtis, 66 Cal. 116, was for the purpose of determining the ownership of a certain policy of life insurance, and was commenced March 26, 1880. On the next day the court granted a restraining order by which the plaintiff herein was enjoined from collecting the money due upon the policy, and from transferring or delivering the policy, or the money due thereon, to-any other person, and was directed to show cause on a succeeding day why the order should not be continued in full force until the final judgment and decree in the-case. An undertaking in the sum of five hundred dollars was executed by the respondents herein upon the issuance of the said restraining order. On April 16th this order to show cause came on for hearing, and the court on that day ordered that the said restraining order be continued in full force and effect until the termination of the suit. Subsequently the defendant, appellant herein, moved to dissolve the injunction, and on July 30th his motion was denied. On the same day the court-ordered that the plaintiff file a bond in the sum of five-thousand dollars, and thereupon the undertaking sued on herein was executed by the sureties to the original Undertaking. The cause was tried in April, 1881, and
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