Parker v. Slaughter

24 Iowa 252

Opinion

Beck, J.

It is claimed, that, under section 5194 of the Revision, the court had the power to try the cause without a jury. The section provides, that, “ upon the dissolution of an injunction to stay proceedings upon a judgment, the damages shall be assessed by the court, which may hear the evidence and decide in a summary way, or may, on the request of either party, cause a jury to be impaneled to find the damages.” This evidently means, that, upon the dissolution of an injunction, the damages may be assessed in a summary way in the proceedings— the very case in which the writ was issued, the intention being plainly to prevent the necessity of an action at law upon the bond, and the delay and expense incident thereto. This is an action at law upon the injunction bond, to which the provision above quoted is not applicable. The court therefore erred in denying to . defendant a jury.

Reversed.