Rhodes v. Auld

47 P. 170, 5 Kan. App. 225, 1896 Kan. App. LEXIS 306

• Court: Court of Appeals of Kansas
• Decided: December 5, 1896
• Docket: No. 160
• Status: Published

Opinion

Garver, J.

The main contention in this case is as to the extent of the liability of Rhodes upon the bond, and the measure of the damages recoverable thereon. In considering this question, it is necessary to bear in mind that a surety is favorably regarded in law, and that his liability cannot be extended beyond the express terms of his agreement. Under this rule, as applied to the undisputed facts, we think it clear that Rhodes, as surety for Warden in the injunction proceedings, did not incur the liability for which he was held by the court. By the giving of the injunction bond, the custody of the attached property was not changed or disturbed; it continued in the possession of the sheriff who had executed the writ of attachment. A portion of such property was live stock, and, because of the expense of keeping it, it was, pursuant to an order of the judge of said court, advertised to be sold on May 9, 1887. By the order allowing the injunction and the giving of the bond, the sale was prevented; but, beyond such interference with the making of an immediate sale of the property, the bond had no effect. The evidence clearly shows that the sheriff continued in possession of the property after the execution of the bond the same as before, no change whatever being made until May 30, 1887, when it was turned over and delivered to Warden pursuant to another and separate order. Such an order and delivery of possession could have been made in the attachment suit without regard to the injunction proceedings. Gen. Stat. 1889, ¶ ¶ 4282, 4311. When the injunction bond was given, the parties thereto could have contemplated nothing more than the prevention of the proposed sale of the property, and the leaving of it in the custody of the officer. Its subsequent disposition was under another and entirely independent order of the judge, with which the surety on the prior bond was in no wise connected, and for which he cannot, either in fact or in law, be held responsible. That ■.this was the view of the parties at the time, is evident from the fact that the order for the surrender of the property to Warden was conditioned upon his giving another bond, with sureties, in the sum of twenty-five hundred dollars, for the return of the property when demanded. Such bond was given, and it was upon this order and bond alone that the sheriff parted with the possession of the attached property. Such bond, for the time, took the place of the property, and to it the attaching plaintiff had to look when the property was not forthcoming. These orders and bonds are as separate and distinct from each other as they would have been had the application for the custody of the property and the order therefor been made in the attachment case. The obligors in the injunction bond did not bind themselves to answer for any and every damage that might result in that action. The damages covered by the bond are only such as were sustained by reason of the injunction; they must be attributable to the order for the injunction, and be its natural and proximate consequences. When there is a new and independently intervening cause for an injury, it must be held to be the legal cause of such injury, rather than something which is remote, though indirectly connected therewith. We think, therefore, that in this case, so far as concerns the attached property, a surety on the injunction bond cannot be held liable for any disposition made of such property after its surrender by the sheriff to Warden. As the sale of the property was ordered for the purpose of avoiding the expense of its keeping, and the continuance of such expense from May 9, 1887, to May 30, 1887, was made necessary by reason of the injunction, and the value of the property as a security for the plaintiff was to that extent lessened, such expense, if necessarily and reasonably incurred, would be covered by the conditions of the bond. Likewise, the obligors therein would be liable for any depreciation in the value of the property, or for its loss, if such depreciation or loss was directly referable to the injunction and occurred during the time possession was retained by the sheriff. As it was finally determined that the injunction should not have been granted, the bond is also holden for the necessary and reasonable expenses, including attorney’s fees, incurred by the defendant in defending against that action. Stated briefly, we hold that Warden and his sureties áre liable on the injunction bond for all damages sustained by Auld with reference to the attached property from May 9, 1887, to May 30, 1887, which were the natural and proximate results of the sale having been enjoined, and, in addition thereto, for the necessary and reasonable expenses, including attorney’s fees, of defending against the injunction proceedings ; while Warden and his sureties on the forthcoming bond, given May 28, 1887, are liable for a return of the property, or the payment of its value. It follows, therefore, as the trial court did not observe these rules in fixing the liability of the plaintiff in error, that the judgment must be reversed. .

Other errors are complained of and discussed in the brief of counsel for plaintiff in error, but as they are not likely to occur upon another trial we shall not treat of them in this opinion.

The judgment will be reversed and the case remanded for a new trial.