Hays v. Fidelity & Deposit Co. of Maryland

after stating the case as above, delivered the opinion of the court.

This is an action on two injunction bonds made by the same obligors in the same cause. The sole question to be decided is whether or not the petition shows a legal cause of action against the defendant. It appears from the petition that a suit in which James Martin was plaintiff and Thomas H. Hays (the petitioner in this action) was defendant had resulted in a judgment for Martin and against Hays. Execution issued, and was levied on certain shares of stock, the property of Hays. The Farmers' Sc Drovers' Bank, the principal on the injunction bonds, filed a petition of intervention in the case of Martin against Hays, alleging that the judgment therein was fraudulent, and obtained an injunction against the sale of the shares of stock levied on The bonds sued on in this action were given to secure the injunction. It does not appear from the petition who were made defendants to the injunction suit. Nor does it appear, except by inference, who was enjoined. It does appear that'the injunction stopped the sale, and the ensuing damage is averred. It was Martin, the plaintiff in execution, who was proceeding to sell Hays' stock; and the natural inference, in the absence of averment to the contrary, is that Martin was defendant to the petition of intervention, and that its prayer sought to enjoin him from selling the stqck, and that the injunction followed the prayer. We cannot construe the petition in this action as averring that Hays, the defendant in execution, was enjoined from selling the stock. It was, we suppose from the petition, Martin, the plaintiff in execution, who was enjoined. It fairly follows, we think, that Martin was the defendant in the injunction suit; that is, in the intervening petition praying for the injunction. The statute authorizing the issuance of the injunction requires the party applying for it to annex to his petition “his obligation in favor of the defendant for such sum as the court may determine, after having examined what injury the defendant may sustain from such injunction, * ⅜ * to secure the payment of such damages as may have been sustained by the defendant.” Rev. Code Prac. La. art. 304. By “defendant,” here, is clearly meant the defendant or defendants in the injunction suit. It does not mean the defendant in spme other case to which the. injunction suit may relate. From the averments of the petition, in view of the terms of the statute requiring the bonds, we are constrained to hold that it appears from the petition that the bonds required were payable to Martin, and not to Hays, the plaintiff in this action.

But it is argued in behalf of the plaintiff in error that Hays was one of the obligees in the injunction bonds. It is not so alleged. And if it had been alleged that the bonds were payable to him and to Martin, as it appears from the petition that the injunction was to stop Martin from, selling by judicial process Hays' stock, we could not conclude, from the bond being so written, that the injunction suit sought relief against Hays, and that Hays was made a defendant. It is not alleged that he was defendant to the intervening petition, nor that he was enjoined. The learned counsel for the plaintiff in error argue that the petition shows that the petitioner, Hays, was an obligee in *875the injunction bonds, because it avers that the “bonds were conditioned for the payment of such damages as this petitioner should sustain.” If we construe the petition as making such averment, that is not enough. Before he makes the case come within the statute as to injunction bonds, it must appear that he was a defendant in the injunction suit. Under the law of Louisiana, the liability of the obligor oil a judicial bond depends on the law, and not on the form, of the bond. If Hays were an obligee in the bonds sued on, he not being a defendant in the injunction suit, and the statute requiring the bond to be in favor of the defendant, the law would strike his name out, and insert that of the statutory payee, the defendant in the injunction suit. It has been said by the supreme court of Louisiana that the doctrine is well settled that, “where a bond is given under the authority of a lav/, whatever is included in the bond, and which is not required by the law, must be read out of it, and whatever is not expressed, and ought to have been incorporated, must be read as if inserted into it.” Macready v. Schenck, 41 La. Ann. 456-463, 6 South. 517. And this principle has been applied where the bond names an obligee not named in the statute. Railroad Co. v. Barksdale, 15 La. Ann. 465. The liability of sureties on judicial bonds is fixed by the law which authorizes the taking of the bonds. Sears v. Bearsh, 7 La. Ann. 539. It does not appear from the petition that Hays was the payee in the bonds sued on, and (which is of greater importance) it does not appear that he was a defendant in the injunction suit. An injunction bond secures' only “the payment of such damages as may have been sustained by the defendant.” Rev. Code Prac. La. art. 304. The petition shows no right of action in Hays on the bonds.

The judgment of the circuit court is affirmed.