
    DUCKET et al. v. PRICE et al.
    
    
      (Supreme Court of Colorado,
    
    
      December Term, 1883
    
    
      Appeal from District Court of Fremont County.)
    
    Injunction Bond —Suit on. Under the Code (Sec. 141, Code of 1883,) suit upon an injunction bond may be brought in the first instance against the principal and sureties, and the damages be assessed and awarded in such action.
   Beck, C. J.

Appellants brought suit in the Court below, upon an injunction bond, averring in their complaint the dissolution of the injunction, and stating several claims for damages accruing to them by the wrongful suing out of the injunction.

Appellees, who are the principals and sureties upon the injunction bond, demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

The demurrer was sustained, and the appellants amended their complaint. Appellees demurred to the amended complaint, assigning the same ground'of demurrer. The Court again sustained the demurrer, and appellants declining to plead further, judgment was given for the appellees dismissing the complaint, and for costs; from which judgment the appellants have prosecuted this appeal.

The appellees have made no appearance in this Court, and the cause has been heard ex parte. We are therefore not advised by the appellees what they rely upon as the fatal defect or defects in the complaint, which can be reached by a general demurrer. No damages were awarded on dissolution of the injunction, nor have any been assessed and awarded in any preceeding instituted for the purpose since its dissolution. Courts have held, under dissimilar statutes, however, that no right of action accrued upon an injunction bond until damages were assessed and awarded against the complainants in the injunction proceedings.

Section 139 of our Civil Code (Sec. 141, Code of 1883), provides that this shall not be necessary in cases of this character, but that principal and surety may be sued together in the first instance, and the damages assessed and awarded in such action.

If, therefore, this objection be relied upon it is untenable.

Macon & Cox*, for appellants.

We are of opinion that other objections to the complaint, if they exist, should be specially assigned.

The judgment is reversed, and the cause remanded for further proceedinges. Judgment reversed.  