California Insurance v. Schindler

McKEE, J. The action in hand was brought against defendants, as sureties to an undertaking in the sum of two thousand five hundred dollars to recover damages which the corporation, plaintiff in the action, claims to have sustained by reason of, and during the continuance of, a restraining order, and the costs and expenses incurred in procuring its dissolution. The restraining order was made on March 15, 1879, in an action commenced on that day by George W. Carter against the said corporation to perpetually enjoin it from collecting an assessment which had been levied upon its outstanding policies of insurance. At the time of filing the complaint in the action Carter obtained an order to show cause why a temporary injunction should not be issued, and also an order ad interim restraining the corporation from doing any act or thing in the way of collecting the assessment. On obtaining this last order he gave bond, as required by the court, in the sum of one thousand dollars, conditioned accord[229]ing to section 525 of the Code of Civil Procedure. That bond was filed and approved by the court on March 15, 1879.

The order to show cause came on to be heard April 11, 1879. On that day counsel for both parties argued and submitted Carter’s application for a temporary injunction. The court took the application under advisement, and, at the same time, required - Carter to give and file a further undertaking in the sum of two thousand five hundred dollars, with the like conditions and provisions contained in the one thousand dollar bond, “as a condition to the further continuance of the injunction.” This additional bond was given, approved and filed on the day of the entry of the order which required it. Three days thereafter, namely, on April 14, 1879, the court dismissed the order to show cause, denied the application for a writ of injunction on the ground that the plaintiff in the action was not entitled to the writ, and discharged the restraining order on the ground that it had been improperly made. Prom that order no appeal has been taken; the order has not been in any respect modified or reversed; it stands in full force, although the injunction suit is yet pending.

At the trial of the action upon the breach of the two thousand five hundred dollar undertaking the court found as follows, namely:

“(1) That the district court ordered that the undertaking for two thousand five hundred dollars be given and filed in the place and stead of the bond already filed, to wit, the aforesaid bond of one thousand dollars; and that in pursuance of the order thus made the undertaking was given, approved and filed in the place and stead of the bond for one thousand dollars.