United States v. Lewis Pub. Co.

160 F. 989, 1908 U.S. App. LEXIS 5090

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: April 30, 1908
• Docket: No. 5,478
• Status: Published

Opinion

TRIEBER, District Judge.

The government seeks in this action to recover damages alleged to have been sustained by reason of a temporary restraining order granted to the defendant in this case, and at a later date, upon a hearing for tlic temporary injunction, dissolved. The damages sued for in this cause are to cover alleged losses sustained in excess of the penalty of the bond executed when the temporary restraining order was granted. Defendant demurs to the petition on the ground that in no event is a plaintiff in an injunction proceeding liable for any damages sustained by the defendant in that proceeding in excess of the penalty of the bond required to be given..

Section 718, Rev. St. (U. S. Comp. St. 1901, p. 580), authorizes the granting of a restraining order, with or without security, in the discretion of the court or judge, and it has been uniformly held that when no bond is required by the court granting the restraining order there is no liability for damages, or, if a bond is required to be given, its penal sum is the maximum risk assumed. Meyers v. Block, 120 U. S. 206, 7 Sup. Ct. 525, 30 L. Ed. 642; Houghton v. Cortelyou, 208 U. S. 149, 28 Sup. Ct. 234, 52 L. Ed.-; Scheck v. Kelly (C. C.) 95 Fed. 941; In re Williams (D. C.) 120 Fed. 34, 37; Cimiotti Unhairing Co. v. American Fur Refining Co. (C. C.) 158 Fed. 171. Of course, if there has been a malicious prosecution, an action may lie regardless of the bond; but nothing of this nature is involved in this proceeding.

The demurrer to the complaint will be sustained, with leave to the plaintiff to file an amended petition within 30 days, if desired; otherwise, a final judgment in favor of the defendant will be entered.