Roach v. Burnes

33 Mo. 319

• Court: Supreme Court of Missouri
• Decided: January 15, 1863
• Status: Published

Opinion

Dryden, Judge,

delivered the opinion of the court.

This was a petition asking that the defendant should be perpetually enjoined from the execution of a judgment for one hundred and seventy-five dollars and ten cents, recovered by Burnes against the complainant. The ground upon which the relief was asked was, that the judgment was recovered on motion, without notice to the complainant, and was therefore void; and that defendants were seeking to enforce the same by execution against the plaintiff’s lands.

A temporary injunction was granted. The defendants answered, and on the hearing the court dissolved the injunction and rendered a new judgment in favor of the two defendants, against Mrs. Roach, for the same sum which Burnes had in the first instance recoA^ered.

The first judgment was clearly void, and ^the last was erroneous. If the defendants had sustained any damages by reason of the injunction, it was competent for the court to assess the same, not exceeding ten per cent, on the amount enjoined, and render judgment therefor. (§ 13 & 14, p. 1249, R. C. 1855.) The judgment cannot be sustained. Let it be reversed, and the cause remanded.

The other judges concur.