Gelston v. Whitesides

3 Cal. 309

Opinion

Heydenfeldt, Justice,

delivered the opinion of the court. Wells, Justice, concurred.

Damages may be recovered on an injunction bond, when the injunction has been improperly sued out; and where an injunction is dissolved, the judgment of dissolution is conclusive ; and in a suit upon the bond, the only question is the amount of damages sustained. But where an injunction is dissolved, and the suit in which it issued is dismissed, by the action of the party who obtained it, it is no admission that the injunction was improperly sued out. It evinces, at least, but an unwillingness further to prosecute the writ. When, in such a case, therefore, a suit is brought on the injunction bond, it is necessary, in order to maintain the action, that it should be shown that there was no proper cause for the injunction.

The court therefore erred, in instructing the jury that the issue should be narrowed exclusively to the question of damages.

The judgment is reversed, and the cause remanded.