Staples v. White, Handley & Co.

12 S.W. 339, 88 Tenn. 30

• Court: Tennessee Supreme Court
• Decided: October 15, 1889
• Status: Published

Opinion

Lukton, J.

As to strangers to a pending suit, the constructive notice of Us pendens, where only such notice is relied upon, begins with the service of the subpoena upon the material defendants to the suit pending. Tharpe v. Dunlap, 4 Heis., 674; Williamson v. Williams, 11 Lea, 363. It is not, however, essential, where the notice of Us pendens is pleaded or relied upon in answer, that it shall be averred that the subpoena had been served at the time the complainant had acquired an interest in the property involved in the pending litigation. This fact must, however, be shown, for the Us pendens only commences with the service of subpoena. For this very reason it is not necessary, in order to be allowed to prove and rely upon such Us pendens, to allege that subpoena had been served, for there was no Us pendens as constructive notice until such service. The second assignment of errors is that - the Chancellor erred in giving judgment against complainants and the sureties on injunction bond for the amount of the decree enjoined. The debt was not the debt of complainants, nor was the decree against them. The only liability for which the injunction bond can. be held is for such damages as were actually sustained by the wrongful suing out of the injunction. Moore v. Hallum, 1 Lea, 511.

It does not matter that the bond may have been in double the amount of the decree enjoined. The decree ordered a sale of land claimed by complainants. Such damages as were sustained by the delay in the execution of the decree are the only damages which can' be recovered. What these were not appearing, there should have been a reference.

The decree of the Chancellor will be modified as to this, and remanded, if desired, for a reference and ' decree for damages thus ascertained. The costs of this Court will be equally divided.