Gelston v. Whitesides
California Supreme Court
Appeal from the Sixth Judicial District. This action was brought against defendants, on an injunction bond'. Plaintiff averred that he was lawfully seised of a certain tract of land, describing it, and engaged in cultivating it, &c.
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Appeal from the Sixth Judicial District. This action was brought against defendants, on an injunction bond'. Plaintiff averred that he was lawfully seised of a certain tract of land, describing it, and engaged in cultivating it, &c. That on the 6th January, 1851, the defendants procured the injunction to he issued, restraining him from fencing, improving, &c., the said premises; and that to procure the same, the said defendants made their bond to plaintiff in the penalty of §5000. That the injunction was set aside and dismissed, on the 9th of June, 1851, by the court; that by reason thereof…
1Opinion of the CourtHeydenfeldt, Justice
Wells, Justice, concurred.
Damages may be recovered on an injunction bond, when the injunction has been improperly sued out; and where an injunction is dissolved, the judgment of dissolution is conclusive ; and in a suit upon the bond, the only question is the amount of damages sustained. But where an injunction is dissolved, and the suit in which it issued is dismissed, by the action of the party who obtained it, it is no admission that the injunction was improperly sued out. It evinces, at least, but an unwillingness further to prosecute the writ. When, in such a case, therefore, a suit is…
2Cited by2 opinions
- Dowling v. PolackCalifornia Supreme Court · 1861
- Meriwether v. Lowndes CountySupreme Court of Alabama · 1889