Neal v. Taylor

20 S.W. 352, 56 Ark. 521, 1892 Ark. LEXIS 198

• Court: Supreme Court of Arkansas
• Decided: October 29, 1892
• Status: Published

Opinion

Cockrlrr, C. J.

The only liability assumed by the obligors, in the injunction bond sued on, was that they would pay to the party enjoined the damages which he might sustain by a wrongful injunction. There is no stipulation to pay the amount of the judgment enjoined, in case the injunction should be dissolved. The only way in which the obligee in the bond could bring the payment of his judgment within the terms of the bond would be to prove that he had lost the opportunity to collect it by reason of the injunction. It may be that in that event the full amount of the judgment could be assessed as damages sustained by reason of the injunction. See Crawford v. Woodworth, 9 Bush, 745. But the court resolved the question of fact involved in that consideration against the appellant, and, with this fact against him, the condition of the bond does not warrant a recovery of the amount of the judgment. Ferguson v. Tifton, 1 B. Monroe, 28 ; Ashby v. Tureman, 3 Littell, 6. We have nothing before us except the court’s special finding of facts set out in the judgment. There is no bill of exceptions.

In the case of Hunt v. Burton, 18 Ark. 188, a recovery of the full amount of two judgments enjoined was sustained in a suit at law against the surety in the injunction bond, without a showing that the fruits of the judgments were lost by reason of the injunction. But there is a wide difference between the facts of that case and this. The bond in that case contained the condition, then but not now required by statute, that the sureties would abide the decision of the suit for injunction and pay, all sums of money adjudged against their principal therein. See Blakeney v. Ferguson, 18 Ark. 347.

In the decree dissolving the injunction, the court adjudged against the principal the amount of the judgments which had been enjoined, together with damages ; and it was ruled that the sureties were liable for the amounts so adjudged. In the text of High on Injunctions

* it is stated, upon the authority of the Supreme Court of Missouri, that a surety who is bound only by a condition such as that construed in Hunt v. Burton would not be liable for the amount of the judgment enjoined unless the amount was adjudged against the principal ■ on the dissolution of the injunction. And that comports with the reasoning of this court in the case of Blakeney v. Ferguson, 18 Ark. sup., where the court seemed to hold that the statute and the form of the bond itself contemplated that the court dissolving the injunction should in every case ascertain what damages the obligee had sustained, and that he could recover none at law that had not been awarded against the principal in the cause wherein the injunction was dissolved; though a different view was taken of the same statute in Marshall v. Green, 24 Ark. 410.

The judge granting the injunction in this case could have required a bond to secure the payment of the judgment in case the injunction should be dissolved, as a condition to the issue of the restraining order, if it appeared to him that the rights of parties demanded such protection. The power to impose equitable conditions in such cases is recognized by the general equity practice (Russell v. Farley, 105 U. S. 433), and is authorized by statute. Mansf. Dig. secs. 3741, 3745. But no such condition was imposed, no damages were assessed on dissolution of the injunction, and none were proved on the trial.

To hold the surety liable for the amount of the judgment would be to make his obligation broader than the terms of his bond. That of course cannot be done.

Affirm.

’Hig'h on Inj. sec. 1639.