
    CASE 66 — ACTION BY CY JONES AND ANOTHER AGAINST THE UNITED STATES FIDELITY & GUARANTY COMPANY.
    June 10, 1908.
    United States Fidelity & Guaranty Co. v. Jones, &c.
    Appeal from Laurel Circuit Court.
    H. C. Faulkner, Circuit Judge.
    Judgment for plaintiffs, defendant ‘appeals.
    Reversed.
    1. Appeal and Error — ¡Supersedeas—Nature and Scope. — A supersedeas suspends the judgment, but does not ¡annul it, or undo what is already done.
    2. Same — Suspension of Injunction. — ¡Where a judgment dissolving an injunction is not suspended, because ¡of failure to. comply with ¡Civ. Code, Sec. 748, requiring a certain bond to be given before a supersedeas shall issue, tihe dissolution of the injunction takes effect, and is not affected by .a subsequent supersedes® of the judgment.
    3. Injunction — ^Liability on Bon'd. — Damages—Duty to Prevent Damages. — ¡Where a bond was given for an injunction restrain- . ing the removal of timber, which injunction was dissolved, damages may not be recovered thereunder by defendant for the idleness of his mules, which had been used in removing the timber, if by the exercise of ordinary diligence he might have obtained other work for them.
    LEWjlS McQUOWN, W. L. BROWN and ELI H. BROWN for appellant.
    SAM C. HARDIN for appellee.
   Opinion of the Court by

Judge Hobson,

Reversing.

M. A. Miller brought a suit in the Laurel circuit court against Cy Jones and Green Jones, ¡asking that her title to a half interest in a certain tract of land be quieted. She obtained an injunction restraining the defendants from removing the timber from the land during the pendency of the action, and executed an injunction bond, with the United States Fidelity & Guaranty Company as her surety. On the trial of the action her petition was dismissed, and the injunction dissolved. Thereupon this suit w*as brought by Cy Jones and Green Jones against the United States Fidelity & Guaranty Company upon the injunction bond, to recover the damages they had sustained by reason of the injunction. The. defendant filed an answer, controverting the allegations of the petition as to the damages sustained. Afterwards it filed an amended ¡answer, pleading that M. A. Miller had taken an appeal to this court from the judgment dismissing her petition and dissolving her injunction; that she had executed a supersedeas bond; that a supersedeas had issued superseding the judgment of the circuit court; and that the case was pending’ in this court. The defendant thereupon entered a motion that the action be continued until the appeal was heard and determined in this court. The circuit court overruled the motion, and, the 'case being tried, the plaintiffs recovered a judgment for $425. The defendant appeals.

In Gardner v. Continental Insurance Co., 101 S. W. 911, 31 Ky. Law Rep. 69, it was held by this court that a supersedeas suspends the judgment, but does not annul it or undo what is already done. It has no retroactive effect; whatever is done under the judgment while it is superseded is done without authority from the judgment, as it is then powerless. Other authorities laire collected in that opinion. See also Durham v. Strait, 119 Ky. 222, 83 S. W. 581, 26 R. 1147, 2 Cyc. 910. In Johnson v. Williams, 82 Ky. 45, it was held that, after the judgment was superseded, the plaintiff could not bring 'an action upon the judgment and take out an attachment against the defendant’s property. As the judgment had not been superseded at the time the action was brought, it was prop - erly instituted; but the subsequent supersedeas took away from the judgment all efficacy while the supersedeas remained in force, and the action should have been continued until the appeal was determined in this court, or the supersedeas was discharged. As the supersedeas does not undo what has been done where it is given pending an action, it does not operate to abate the ¡action, for this might seriously prejudice the plaintiff where he had' obtained a lien by his action, or where he had the parties before the court and might be unable, in a second action, to get his process served. But the condition of the bond is that the surety will pay the defendant such damages as he may sustain by reason of the injunction if it is finally decided that the injunction ought not to have been granted. When the judgment dissolving the injunction is superseded, it,has not been finally determined that the injunction ought not to have been granted; for that is the question to- be determined on the appeal. When a judgment dissolving -an injunction is not suspended, as provided in section. 748 of the Civil Code of Practice, the injunction is no longer in force. The provisions -of that section were not complied with, and so the dissolution of the injunction took effect. The injunction being no longer in force, the defendants were at liberty to proceed with the cutting of the timber on the land. This right in them was not affected by the subsequent supersedeas of the judgment; and if the condition of the bond had been that the surety would pay the damages sustained if the injunction was dissolved, then the supersedeas would have been no defense to this action. But the condition of the bond is that the surety will pay the damages sustained if it is finally decided that the injunction ought not to have been granted1, and no judgment can be entered against 'the surety when there is no final decision in force to this effect. The court, therefore, should have sustained the defendants’ motion to continue the case while the supersedeas was in force.

The chief ground upon which damages were sought was that the plaintiff in the action had five mules, which remained idle from the time the injunction was obtained until it was discharged. The .rule in this class of clases is that the plaintiff cannot recover any damages which he might have avoided by ordinary care, and that if he could get other work to do by ordinary diligence, he cannot recover for remaining idle. The plaintiff testified, in effect, that the mules remained idle because his time was taken up in taking proof in the action and looking after it, as he had no time to look around and get work for his mules or to put them at something else. The proof taken in the action related to the title to the land. If no injunction had been taken out, it would have been just as necessary for the plaintiff to look after the taking of the proof as it was. The fact that the plaintiff was unable to work his mules was therefore due to the fact that he had to ¡attend to, the'defense of the lawsuit. Such damages as these are not covered by an injunction 'bond. If the plaintiff could not attend to the lawsuit and work his mules, he should have gotten somebody else to work the mules, and if work could have been obtained for the mules by ordinary diligence, no recovery dan be had upon the bond for their remaining idle. See Lewis v. Scott, 95 Ky. 486, 26 S. W. 192, 16 R. 49, 44 Am. St. Rep. 251; Miller v. Smythe, 92 S. W. 964, 29 Ky. Law Rep. 242. In the latter case the court pointed out what damages might be recovered upon an injunction bond in a case like this, under proper allegations.

Judgment reversed, and cause remanded for a new trial.  