Asevado v. Orr

Citations

• 100 Cal. 293
• 34 P. 777
• 1893 Cal. LEXIS 786

Syllabus

<p>Injunction—action Against Plaintiff—Sureties on Bond—Pleading —Malice—Probable Cause.—A complaint which contains two counts, one for damages against the plaintiff in an injunction suit, and the other against the sureties upon the injunction bond, but which fails to aver either malice or want of probable cause in the issuance of the writ of injunction, fails to state any cause of action against the plaintiff in the injunction suit.</p> <p>Id.—Dismissal of Injunction Suit—Admission. — The fact that the plaintiff in the injunction suit voluntarily dismissed the action does not show an admission on his part that he had no probable cause for commencing it.</p> <p>Id.—Malicious Prosecution of Injunction—Action for Damages— Remedy Against Sureties.—An action on the case for damages will not lie for improperly suing' out an injunction unless the complaint charges an abuse of the process of the court through malice and without probable cause. If the act complained of is destitute of these ingredients, the only remedy of the injured parties is an action upon the injunction bond.</p> <p>Id.—Liability of Plaintiff Upon Bond.—The plaintiff in the injunction suit is not liable upon the injunction bond, if he was not a party to the undertaking.</p> <p>Id.—Liability of Sureties—Proof Required.—The liability of the sureties upon an injunction bond depends simply upon proof that the injunction was issued, that the defendants suffered damage thereby and that the court has decided that the plaintiff was not entitled to the injunction.</p> <p>Id.—Voluntary Dismissal—Decision of Court.—The voluntary dismissal of an injunction suit by the plaintiff has the same effect as a decision of the court, that he was not entitled to the injunction.</p> <p>Id.—Joint Demurrer—Misjoinder of Parties and Causes.—In an action against the plaintiff in the injunction suit and the sureties on the injunction bond, where the second count of the complaint sufficiently stated a cause of action against the su