McAden v. . Watkins

131 S.E. 375, 191 N.C. 105, 1926 N.C. LEXIS 15

• Court: Supreme Court of North Carolina
• Decided: January 27, 1926
• Status: Published

Opinion

Clarkson, J.

The injunction issued 9 June, 1921, by Judge G. H Ferguson on behalf of plaintiffs and against defendant contained the following : “Upon the plaintiffs’ filing with the clerk of the Superior Court of Cherokee County a bond in the sum of $500, conditioned as provided in section 854 of the Consolidated Statutes, justified as required by law, said clerk will certify copy of this order for service on said defendant,” etc.

The bond was duly given and accepted by the court for $500, with J. W. Walker as surety.

O. S., 854, is as follows: “Upon granting a restraining order or an order for an injunction, the judge shall require as a condition precedent to the issuing thereof that the clerk shall take from the plaintiff a written undertaking, with sufficient sureties, to be justified before, and approved by, the clerk or judge, in an amount to be fixed by the judge, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as he sustains by reason of the injunction, if the court finally decides that the plaintiff was not entitled to it.”

C. S., 855, is as follows: “A judgment dissolving an injunction carries witb it judgment for damages against the party procuring it and the sureties on his undertaking without the requirement of malice or want of probable cause in procuring the injunction, which damages may be ascertained by a reference or otherwise, as the judge directs, and the decision of the court is conclusive as to the amount of damages upon all the persons who have an interest in the undertaking.”

Amount of undertaking must be fixed by the judge. Bynum v. Powe, 101 N. C., 416. The requirement that an undertaking be given is mandatory. McKay v. Chapin, 120 N. C., 159. If the undertaking is not sufficient, upon good cause shown, it may be increased. Preiss v. Cohen, 112 N. C., 283.

The procedure in the present, case to recover damages was in accordance with the statute, in the original cause. McCall v. Webb, 135 N. C., 365; Davis v. Fibre Co., 175 N. C., 28.

In Davis v. Fibre Co., supra, it was held: “It is now well settled that when an injunction is wrongfully issued as to any part of the plaintiff’s demand, and is partially dissolved to that extent, the party enjoined will be entitled to such damages within the limit of the penalty of the bond as he may have sustained by reason of the issuing of the injunction. A. & E. Enc. of Law, vol. 16, pp. 464, 465, and cases cited; Rice v. Cook, 92 Cal., 144.”

It will be noted that the recovery is “within the limit of the penalty of the bond.” In fact, the statute (C. S., 854, supra), limits the amount of the damages “not exceeding an amount to be specified.”

In Timber Co. v. Rountree, 122 N. C., p. 51, it is held: “It is plain, therefore, that the penalty of the bond is the limit of the liability of the plaintiff and its sureties on the undertaking, the proceeding being also in effect a suit upon the undertaking, and there was error in entering a judgment for a greater amount against the plaintiff in the action than $300, the penalty of the bond.” Crawford v. Pearson, 116 N. C., 718; Shute v. Shute, 180 N. C., p. 388.

In the present case the judge who granted the injunction required a bond in the sum of $500. If this was not sufficient, defendant could, upon notice and good cause shown, have had the undertaking increased. The jury assessed the damages in the sum of $1,175. The judgment against plaintiffs 'must be reduced to the penalty of the bond $500 and cost.

In conformity with this opinion, the judgment below is

Modified and affirmed.