
    Krug v. Bishop.
    
      Injunction bond — Construed with reference to statutes in force at time given — Dismissal of action — Section 5576 Revised Statutes.
    
    1. The terms of an undertaking for an injunction, construed by the statutes in force at the time of giving the same, govern as to the liability of the sureties signing it.
    2. An injunction undertaking was given in accordance with section 5576 of the Revised Statutes, and was conditioned: “ that the plaintiff shall pay to the defendants the damages which they or either may sustain by reason of the injunction in this action, if it be finally decided that the injunction ought not to have been granted.” On motion of part of the defendants, and because co-defendants had not been served with summons, the court dismissed the action without prejudice to another action, and the injunction was dissolved, and the costs were paid by plaintiff. Thereupon suit was brought, on the undertaking, for damages claimed by reason of the injunction. Held: 1. Such dismissal of the action without prejudice, and such dissolution of the injunction, do not constitute. a breach of the condition of the undertaking.
    3. The sureties thereon can not be required to pay damages for such injunction until it is decided that the injunction ought not to have been granted.”
    Error to the District Court of Hamilton county.
    On March 2,1880, Mildred E. Bascoe brought a suit in tbe court of common pleas of Hamilton county against John W. Bishop and Amanda H. Bishop, his wife, and Edward L. Bishop, May Bishop, Howard C. Bishop, and Daisy Bishop, heirs at law of James W. Bishop and Jane B. Bishop, widow of James. The object and prayer of the suit was to have an instrument, in form a deed, declared to be a mortgage, and for relief against the defendants therein.
    Afterward, on March 23, 1880, John W. and Amanda Bishop brought suit'of forcible detainer before a justice of the peace against Bascoe to obtain possession of the real estate described in the instrument. Thereupon Bascoe filed an affidavit in her suit in the court of common pleas, and applied for an injunction restraining the Bishops from proceeding with the suit before the justice of the peace. The court granted a temporary injunction as prayed for, on the filing and approval of the following undertaking:
    “We, Simon Krug and Prank Bruner, of the county of Hamilton and state of Ohio, bind ourselves to the defendants, John W. Bishop, Amanda II. Bishop, Edward L. Bishop, May Bishop, Howard C. Bishop, Daisy Bishop and Jane B. Bishop, in the sum of two hundred and fifty ($250.00) dollars, that the plaintiff, Mildred P. Bascoe, shall pay to the said defendants, the damages which th ey or either may sustain by reason of the injunction in this action, if it be finally decided that the said injunction ought not to have been granted.
    Cincinnati, Ohio, April the 5th, one thousand eight hundred and eighty. Simon Krug.
    Prank Bruner.”
    No summons was served on the Bishops, but the order of injunction was served upon all but John W. Bishop and Amanda H. Bishop, and the court made an entry as follows :
    “ By consent of parties in open court a temporary injunction is granted herein, and the defendants, and each cf them, are hereby restrained and enjoined from prosecuting the action in forcible detainer against the plaintiff, before Nathan Marchant, justice of the peace, or in any way disturbing the possession of the plaintiff in and to the premise? in the petition described, until the final determination of this action by this court. This order of injunction to take effect upon the execution by the plaintiff to the defendants, with surety to the approval of the clerk of this court of an injunction bond or undertaking in the sum of two hundred and fifty dollars ($250.00).”
    On February 25, 1881, Amanda TI. and John "W. Bishop appeared and filed an answer and cross-petition in the case, setting up title and praying that their title might be quieted. On Alarch 3, 1881, John W. and Amanda H. Bishop moved the court to dissolve the injunction granted, for the reason that the facts stated in the petition and affidavit as the grounds asking for the injunction were not true. Upon hearing on affidavits the court refused to dissolve the injunction until the case should be tried upon its merits. May 9, 1881, the defendants, John W. and Amanda H. Bishop moved the court to dismiss the action because of plaintiff’s unreasonable neglect to serve summons on the other defendants, Edward L. May, Howard C., Daisy, and Jane B. Bishop ; and. the court sustained the motion and dismissed the action without prejudice, at the costs of Baseoe, who paid the same.
    And the forcible detainer suit before the justice of the peace was dismissed and costs paid by John W. and Amanda H. Bishop. After the court dismissed the action and the injunction was dissolved, the defendants in error brought suit against the plaintiffs in error on the undertaking for the injunction, averring that, on May 16, 1881, the court dismissed the action and dissolved the injunction at the costs of M. F. Baseoe, and claiming damages for rents and profits of the premises, counsel fees, loss of time, and cash expended, and prayed judgment against the sureties for the full amount of the undertaking. The plaintiffs in error answered, and, among other things, they averred as answer 6, “ that it was a condition of their said obligation that they were only to be liable on their bond in ease it was finally decided that the injunction ought not to have been granted. They deny that it has been finally decided, that the injunction ought not'to have been granted, but on the contrary, they allege that the said injunction ought to have been granted.” A demurrer to this part of the answer was sustained, and on the trial judgment was rendered against the plaintiffs in error for the full amount of the undertaking.
    On proceedings in error the district court affirmed the judgment of the court of common pleas, and plaintiffs in error now seek a reversal of those judgments.
    
      Alfred Yaple and W. H. Baldwin, for plaintiffs in error.
    P. A. Reece, for defendants in error.
   Eollbtt, J.

Are the sureties liable in this action ? This depends upon our statutes and the condition of the undertaking. Section 5576 of the Revised Statutes provides that the undertaking shall be: “ to secure to the party enjoined the damages he may sustain if it be finally decided that the injunction ought not to have been granted.” Under this provision of the statute the undertaking was given conditioned : “ that the plaintiff, Mildred E. Bascoe, shall pay to the said defendants the damages which they, or either, .may sustain by reason of the injunction in this action if it be finally decided that'the said injunction ought not to have been granted.”

The answer sets up that the sureties were to be liable only in case it was finally decided that the injunction ought not to have been granted, and that it has not been finally decided that the injunction ought not to have been granted. All this the demurrer admits. But it is claimed that the dissolution of the injunction is such a final decision as that the condition of the undertaking was broken when the action was dismissed by the court and the injunction was dissolved, though the action was not heard or dismissed upon its merits, and the forcible detainer action was also dismissed by the Bishops without trial. The dissolution of the injunction was consequent upon the dismissal of the action of Bascoe against the Bishops. Section 5313 of the Revised Statutes provides: “ The court may dismiss the petition with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants.” And John W. Bishop and Amanda H. Bishop, having failed to obtain the dissolution of the injunction without a hearing upon the merits of the ease, procured the dismissal of the action without prejudice, “ because of plaintiff’s unreasonable neglect to serve summons on the defendants, Edward L. Bishop, May Bishop, Howard O. Bishop and Daisy Bishop, heirs at law, and Jane B. Bishop, widow of James W. Bishop, deceased,” as shown by the record.

Such a dismissal without prejudice is provided for by section 5314, of the Revised Statutes, as follows: “ An action may be, dismissed without prejudice to a future action ... 3. By the court, for the want of necessary parties. 4. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence.” Such a dismissal is not a final decision on rights in the action, or on plaintiff’s right to the injunction. But it takes away any prejudice to the parties to determine in another action, any right either party may have in the action dismissed.

The action loas so dismissed without prejudice, or the dismissal is void and the action is pending in that court. Such a judgment of dismissal is an entirety. See Wanzer v. Self, 30 Ohio St. 378, where the court says: “A judgment dismissing an action without prejudice to a future action is an entirety, and, though it may have been so rendered erroneously, it will not constitute a bar to a subsequent action upon the same subject-matter.”

If the action was not dismissed withqut prejudice, how-stands the claim of title to the premises in the same action, set up in their answer and cross-petition by John "W. Bishop and Amanda IT. Bishop, especially after they dismissed their cross-petition and the action so enjoined ? Are such dismissals decisive against them ? Sureties are bound by the conditions of their agreements, by the terms of their bond. This is shown by the very cases cited by defend-, ants in error. And until “it be finally decided that the. said injunction, ought not to have been granted,” Krug and Bruner can not be required to respond for any damages by reason of the injunction. The demurrer to their sixth matter of defense admits that such a final decision has not been made, and the demurrer should have been overruled.

See Bein v. Heath, 12 How. (U. S.) 168.

The court erred in sustaining that demurrer, and the district court erred in affirming the judgment of the court of common pleas.

The judgments of the district court and of the court of common pleas are reversed, and the demurrer to the sixth matter of defense is overruled and judgment*for the sureties is rendered at the costs of the defendants in error.  