Bailey v. Haymans

76 So. 135, 73 Fla. 1191

• Court: Supreme Court of Florida
• Decided: May 30, 1917
• Status: Published

Opinion

Per Curiam.

In an action on an injunction bond, it apjpears that a suit was brought to enjoin the plaintiffs in an action of ejectment from prosecuting the action. An injunction was granted on full hearing and a bond executed- by the complainants in the injunction suit conditioned to pay “all costs, losses and charges, damages and expenses” “by reason of said injunction * * * being dissolved or the said bill dismissed on final hearing-.” The statute requires the bond to be conditioned to pay “all damages, losses, expenses and charges * * * sustained * * *by reason of the issuing of the said injunction if the injunction shall be dissolved, or if the bill upon which it was granted be dismissed.” The injunction was dissolved and the bill dismissed on final hearing. The claim is that the plaintiff in this action '“sustained costs, losses and charges, damages and expenses in the sum of six hundred dollars for attorney and counsel fees in and about getting the said injunction dissolved.” A demurrer to the declaration was sustained as to this item; and the complainant declining to amend, a final judgment- for defendant was rendered and the complainant took writ of error. Aside from the inappropriate use of a demurrer instead of a motion to strike or for compulsory amendment, in objecting to an item of damage alleged in a declaration, it seems clear that the item was not an improper one. While there was no motion to dissolve the injunction, it was granted on full hearing and then dissolved and the bill dismissed on final hearing.- The condition of the bond and the statute cover the excluded item.

Reversed.

All concur.