Robinson v. Kellum
California Supreme Court
Appeal from the District Court of the Fifth Judicial District, County of Amador. This was an action on the case to recover $2000 damages for wrongfully suing out an injunction in an action in which final judgment was entered against the plaintiff in that action, defendant herein. It is not averred in the complaint "that the injunction was sued out through malice or without probable cause.
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Appeal from the District Court of the Fifth Judicial District, County of Amador. This was an action on the case to recover $2000 damages for wrongfully suing out an injunction in an action in which final judgment was entered against the plaintiff in that action, defendant herein. It is not averred in the complaint "that the injunction was sued out through malice or without probable cause. The defendant, in his answer, excepts to the complaint as not setting forth facts sufficient to constitute a cause of action, and denies, etc. The case was tried before a jury, who found a verdict for…
1Opinion of the CourtJustice Heydenfeldt
Mr. Chief Justice Murray concurred.
*400An action on the case will not lie for improperly suing out an injunction, unless it is charged in the declaration as an abuse of the process of the Court through malice, and without probable cause. If the act complained of is destitute of these ingredients, then the only remedy of the injured party is an action upon the injunction bond, which is specially provided by the statute as a protection against injury, even without malice.
The judgment is reversed, and the cause remanded.
2Cited by21 opinions
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- Vesper v. Crane Co.California Supreme Court · 1913
- Mitchell v. Silver Lake LodgeOregon Supreme Court · 1896
- Powell v. WoodburySupreme Court of Vermont · 1912
- Young Chun v. RobinsonHawaii Supreme Court · 1912
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