
    Fears et al., Plaintiffs in Error, v. Riley et al.
    Division One,
    December 23, 1898.
    1. Injunction: motion to assess damages: when made. It is not necessary, in order that an assessment of damages may be made against the makers of the bond in an injunction suit, that damages be asked for in the answer or allowed by the court in the judgment dissolving the injunction. They may be assessed upon motion filed during the term at which the injunction was dissolved and the bill dismissed. And if an appeal is taken, without bond, it does not operate as a supersedeas, and hence if the motion is made at the same term at which the decree is entered, it is not premature.
    ■2. -: -: against sureties. The court may assess damages against the sureties on the bond in an injunction ease, on a motion for that purpose.
    .3. -: -: clerk and sherief. It is not necessary for the circuit clerk and sheriff to join in such motion.
    
      Transferred from Kansas Gity Gourt of Appeals.-
    
    Appirmed.
    BE. L. Strohm, E. F. Walker and Martin & Terrill for plaintiffs in error.
    (1) Tbe defendants in error, having asked no damages in their pleadings, and no damages having been allowed or decreed, can not afterward maintain a motion for an ad-ditional judgment for damages. A motion to assess damages may be allowed where damages had been called for by the pleadings and decreed. State ex rel. v. Beck, 36 Mo. App. 117; Hoffelmann v. Franke, 96 Mo. 533; Moore v. Bank, 58 Mo. App. 470. (2) It was error to give defendants jndgment, in the first instance, on the injunction bond, against the sureties; the statutory condition of the bond was not that the sureties pay all damages that the injunction may occasion to the defendants, but to pay such as the court shall, upon the dissolution of the injunction, adjudge against the plaintiff, and the sureties could not become liable to the defendants until such had been adjudged against the plaintiff, and he had failed to pay the same. Dorriss v. Carter, 67 Mo. 544. (3) The judgment herein complained of, was premature and is void. Cohn v. Lehman, 93 Mo. 574.
    George S. Grover, E. P. Wiley and A. H. Waller for defendants in error.
    (1) Appellants’ first contention is groundless for the reasons: First. Because respondents’ right of action to-recover damages accrued to them by reason of the judgment of the court dissolving the injunction and dismissing the bill. Hence it follows that any claim for damages set up in any original pleading would have been premature, and mere surplusage. Second. Because section 5500, Revised' Statutes 1889, provides a summary 'remedy, and the established practice is that this remedy is by mo'tion. It therefore follows that respondents proceeded to have their damages assessed, at the time, and according to the method pointed out by law. (2) It was not error to give judgment against the sureties. Nolan v. Johns, 108 Mo. 431.. (3) Said judgment was not premature. R. S. 1889, sec. 5500; Nolan v. Johns, 108 Mo. 431; Nieser v. Thomas, 46'-Mo. App. 50; Moore v. Bank, 58 Mo. App. 470.; The award of damages appealed from in this cause was not made after the principal suit was appealed to the Supreme Court, as appellants assert, but was made immediately after the judgment of the court dissolving the temporary injunction and dismissing the bill, was made final and conclusive by the-■overruling of the motion for new trial and in arrest, filed in said cause, and before tbe filing of tbe affidavit for appeal, and the granting of tbe appeal to tbe Supreme Court. There was no final judgment until motion for new trial was ■overruled. 2 Thompson on Trials, sec. 2730, p. 2068. (4) It was not necessary that notice be served on tbe sureties in the injunction bond, advising them that damages were asked on motions, after the dissolution of tbe temporary injunction. They were already in court for tbe purpose of these motions. Nolan v. Johns, 108 Mo. 433.
   MARSHALL, J.

— This case grows out of a case be-

tween tbe same plaintiff and defendants for an injunction to declare void and enjoin tbe enforcement of a judgment for $10,000 in favor of Laura Eiley and against John C. Bears, and involves tbe assessment of damages on tbe injunction bond given in that case for a temporary injunction. After tbe dissolution of tbe injunction, and tbe decree dismissing tbe bill and during tbe same term, Laura Eiley filed .a motion for tbe assessment of her damages on tbe injunclion bond, laying them at $1,600, and at tbe succeeding term Laura Eiley filed an additional motion for assessment of damages claiming $600, and George Eobertson filed a separate motion claiming $750. Tbe court beard the evidence adduced by tbe defendants in support of their motion, the plaintiff introduced no evidence, and assessed the damages -.as follows: . George Eobertson, $250; Laura Eiley, for loss of time and expenses, $21; for attorney’s fees, $750; for interest on amount restrained, $600, total, $1,621. After-wards tbe court allowed Laura Eiley to amend her motion, by interlineation, to. conform to tbe proof. Bears sued out a writ of error to tbe Kansas City Court of Appeals, which court transferred tbe case to this court, bolding that it was a part of tbe injunction case pending in this court, and which is the case first above referred to.

I. The first point relied on by plaintiff is tbat as no damages were asked in tbe defendant’s answer, or allowed by tbe court in tbe judgment dissolving tbe injunction and dismissing tbe appeal, noire can be recovered by motion to assess them. To support tbis contention counsel rely on State ex rel. v. Bick, 36 Mo. App. 114; Moore v. Bank, 58 Mo. App. 469, and Hoffelmann v. Franke, 96 Mo. 533.

None of these cases support tbe contention. In Hoffelmann v. Franke, supra, tbe court beld tbat a motion to assess damages on tbe injunction bond must be filed at tbe same term at wbicb tbe judgment dissolving tbe injunction was entered (as was done bere), and came too late if filed at a subsequent term, especially where no notice of tbe motion was given to tbe plaintiff, but Sherwood, J., beld tbat tbe court, even then should have ordered tbe notice given, and not have dismissed tbe case. Moore v. Bank, supra, follows Hoffelmann v. Franke, and decides nothing else. State to use v. Bick, supra, was a suit by a garnishee on an attachment bond, and does not touch tbe proposition bere involved.

Tbe motions in tbis case are within tbe practice beld necessary in tbe two cases above referred to, and hence tbis contention will not be further considered.

II. It is next insisted tbat tbe court bad no power to assess tbe damages against tbe sureties on tbe injunction bond. Dorriss v. Carter, 67 Mo. 544, is relied on to support tbis contention. Tbat was a suit on tbe injunction bond, and tbis court beld tbat no recovery could be bad because no damages bad been assessed in tbe injunction case. It affords no support for tbe contention bere made.

In St. Louis Zinc Co. v. Hasselmeyer, 50 Mo. 180, tbis court beld tbat in a proceeding against tbe sureties on an injunction bond, “by motion or otherwise,” to assess damages on tbe bond, tbe sureties become parties, and are entitled to appear, defend and appeal. Wbicb means tbat a judgment can be rendered against them on motion under our statute. [R. S. 1889, see. 5500.] This was the procedure adopted and approved in Loehner v. Hill, 19 Mo. App. 141, and this case was approvingly cited in Hoffelmann v. Franke, 96 Mo. loc. cit. 534. This contention therefore fails.

III. The fact that Lowell, the circuit clerk, and Stead the sheriff, did not join in the motion to asses.s damages is wholly immaterial. They had no interest in the litigation and were only formal parties, and hence were not entitled to any damages. The real parties in interest joined and were before the court.

IY. The appeal from the decree dissolving the injunction was taken without bond, and hence did not operate as a supersedeas, so the motion for assessment of damages on the injunction bond w'as properly and timely made at the same term at which the decree was entered, and was not premature, as plaintiff claims.

This covers all the errors assigned and relied on by the plaintiff, and failing to find any merit in the points raised, and the judgment of the circuit court being clearly right, it is affirmed.

All concur.  