McLennon v. Fenner

Citations

• 19 S.D. 492
• 104 N.W. 218
• 1905 S.D. LEXIS 71

Syllabus

<p>1. Under Code Civ. Proc. § 200, providing' that damages occasioned by an improvident injunction may be ascertained by reference or otherwise, as the court, shall direct, the assessment of damages in the action in which the injunction is issued is discretionary with the trial court, and is a remedy for the benefit of the defendant in that action, which he may waive, and sue on the injunction bond.</p> <p>2. Failure of defendant in injunction to plead and offer evidence of the damages occasioned by the improvident issuance of the injunction, does not estop him from maintaining a suit for damages on the injunction bond.</p> <p>3. A decree dissolving a temporary injunction is not res judicata in a subsequent action against the surety on the injunction bond for the* damages occasioned by the improvident issuance of the injunction, neither parties nor subject-matter being identical.</p> <p>4. Where an injunction restrained the owner of premises from leasing or transferring them or bringing an action to recover possession, the money which the owner was required to' expend in repairing waste done or permitted during the pendency of the injunction, the rental value of the property for that time, and reasonable attorney’s fees were proper elements of damages in an action on the bond for improvident issuance of the injunction.</p> <p>5. A certificate of the trial judge that an exception is deemed to be taken to each of his rulings without the formality of an exception is insufficient to present such rulings for review, unless the exceptions are incorporated in the bill of exceptions.</p>