Kelley v. Mead

Citations

• 18 S.D. 594
• 101 N.W. 882
• 1904 S.D. LEXIS 100

Syllabus

<p>1. The action for injunction is not dismissed, depriving the court of authority to assess damages therein, by an order that the temporary restraining order be vacated, and the action be dismissed, but that no judgment be entered on the order till the damages be ascertained.</p> <p>2. Dismissal of an action for injunction on motion of plaintiff in effect determines that .the injunction order was improperly issued.</p> <p>3. Under Code Civ. Pro. § 200, providing that if, in an action for injunction, the court decides that plaintiff was not entitled thereto, defendant’s damages may be ascertained by a reference, or otherwise, as the court shall direct, damages may be assessed though they are not claimed in the pleadings. :</p> <p>4. The making of an ex parte order to assess defendant’s damages in an injunction action is harmless, plaintiff t eing at and taking part in such assessment proceedings.</p>