Opinion
March 5, 1913.
George W. Cole, for the appellants.
Hudson Ansley, for the respondent.
By their undertaking entitled in this action, and given pursuant to an order of the court in this action to the plaintiff, the defendants Greenwald and Alton Chemical Company agreed to "account for and pay to the plaintiff any sum which said plaintiff may be finally adjudged herein to be entitled to recover as and for his equity as against the defendants Joseph C. Greenwald and the Alton Chemical Company in the wood already cut and now remaining on the premises" described in the complaint. By means of that undertaking these defendants prevented plaintiff from having an injunction to restrain them from removing such wood from the premises during the pendency of this action, which injunction the court had held plaintiff entitled to unless such undertaking was given. But for this undertaking we must assume that this wood would have remained upon the mortgaged premises until it had been determined by the judgment in the action whether it remained subject to the lien of plaintiff's mortgage, and if not, what if any equitable right therein plaintiff had. Unless this be so there would have been no useful purpose in the injunction which the court directed to issue in default of the undertaking. If the pleadings were not sufficient to permit the trial of such an issue we must assume that the court would have permitted plaintiff to make them so by amendment. By their undertaking these defendants have not only prevented the issuing of the injunction but they have succeeded in removing this wood from the premises without interference and have taken it out of the State. They must now, we think, abide by the agreement contained in their undertaking, which is, in legal effect, that it be determined in this action whether they ought, in equity and good conscience, to account for and pay to plaintiff any sum of money on account of his equity in the wood which they have so been permitted to remove from the jurisdiction of the court and apply to their own uses. We think they are estopped by their undertaking from questioning the right of the plaintiff to have such a question determined in this action, and hence are estopped from questioning any appropriate amendment to the complaint to that end. We think they are also estopped by the judgment herein from raising the questions presented upon this appeal. The judgment is the law of the case as between themselves and the plaintiff and they have not appealed from it. It expressly reserves the questions presented by the amended complaint for future determination in this action, in case the mortgaged premises failed to satisfy plaintiff's debt upon sale thereof, and it practically authorizes the amendments to plaintiff's complaint which have been allowed. In view of the form of this undertaking it may well be that no amendment to the complaint was necessary, but however that may be, we are unable to concur in the appellants' position that it was an idle form and imposed no liability upon them because under the pleadings plaintiff would not be in a position to enforce the liability which they purported to assume.
Appellants further contend that the order permitting the amendments to the complaint is erroneous in that it should have been granted on condition that defendants be relieved from liability under the undertaking and that the judgment should be opened or vacated. There is no equitable basis for this position. The undertaking imports the implied, if not the express, consent and agreement that the issues added to the complaint by the amendments be determined in this action. It should not surprise or disappoint the makers of the undertaking if the courts require these issues to be so determined. Nor do we see any necessity to open or vacate the judgment for the full protection of the defendants in presenting their defense to these issues. So far as the defense pleaded in their answers applies to the standing timber which has been sold under the decree, we think they waived that defense by not presenting it at the trial, and that so far as the standing timber is concerned that issue has been determined against them, but it is not res adjudicata in respect to the timber cut and lying on the ground at the time the undertaking was given, for the judgment expressly reserves the determination of all issues as to this cut timber. Hence the defendants are now in a position to maintain any defense they now have or which they had before the trial as to that issue.
Our conclusion is that the order appealed from is right and should be affirmed, with ten dollars costs and disbursements to the respondent.
All concurred; LAMBERT, J., not sitting.
Order affirmed, with ten dollars costs and disbursements.