Opinion
January 6, 1944. Rehearing denied January 27, 1944.
1. — Injunction. To carry out the purpose and intent of the Legislature in the statute relating to the assessment of damages upon dissolution of an injunction, the statute should be given a reasonable and practical construction and interpretation.
2. — Injunction. The statute relating to the assessment of damages upon dissolution of an injunction dispenses with the necessity of a suit on the injunction bond.
3. — Injunction. Under statute, proceeding for assessment of damages upon dissolution of an injunction is not ancillary to nor a mere after-judgment proceeding in the injunction suit, but rather assumes the nature and character of an independent action on the injunction bond. Mo. R.S.A., sec. 1673.
4. — Appeal and Error — Venue. A change of venue can be taken or an appeal granted from the judgment rendered on motion to assess damages on the injunction bond, upon dissolution of the injunction.
5. — Injunction. Where motion to assess damages on an injunction bond is filed at the term at which the injunction is dissolved, the motion may be continued to a subsequent term.
6. — Injunction. A motion to assess damages on an injunction bond is a proper procedure, and is in its nature and effect a pleading which initiates a proceeding to assess the damages.
7. — Injunction. Where motion to assess damages on an injunction bond is not acted upon at the judgment term when injunction is dissolved, the motion carries over to subsequent term and may be heard at that time.
8. — Injunction. Where at term judgment dissolving an injunction was rendered, defendant filed his motion or suggestions to assess damages on the bond, the term adjourned, and the motion was neither submitted nor acted upon at that term, a special judge had jurisdiction to determine the motion at a subsequent term.
PRELIMINARY RULE IN PROHIBITION QUASHED.
Von Mayes for relator.
(1) The filing of a motion, more properly termed suggestions, to assess damages on an injunction bond, does not have the legal effect of the filing of a petition in an ordinary civil action, so as to carry it over for disposition at a later term of the court. An independent suit upon an injunction bond cannot be maintained in this State. Keber v. Bank, 4 Mo. App. 195; Campbell v. Carroll, 35 Mo. App. 640; Aetna Ins. Co. v. Printing Co., 196 S.W. 93; 32 C.J. 434. In one or two cases it has been said that a separate suit may be maintained on the bond, but that the damages must be first assessed in the injunction suit. Nolan v. Jones, 27 Mo. App. 502; Dorris v. Carter, 67 Mo. 544. If a motion to assess damages filed in an injunction suit does not require action upon it at the judgment term, this would deprive it of its ancillary nature and convert the proceeding into an independent action, triable at any time. In mandamus, when plaintiff fails to sustain the issue, the statute authorizes the defendant to recover damages in an independent action. Sec. 1701, R.S. 1939. And the same is true in the cases of ejectment. Secs. 1548 and 1558, R.S. 1939. But in garnishment, like in injunctions, the damages must be independently assessed in the main action and during the judgment term. Sec. 1583, R.S. 1939; Ladd v. Couzins, 52 Mo. 454; State v. Daues, 66 S.W.2d 137. The garnishment statute, like the injunction statute, makes no provision for a motion nor designates the time for assessing the damages. The same is true with statutes relating to determining the amount of attorney fees in partition suits, which must be done before the lapse of the judgment term. State v. Daues, supra; Sec. 1761, R.S. 1939. (2) After final judgment and the lapse of the term the court retains jurisdiction of the record of the case, but it loses jurisdiction of the case and cannot regain it except in the modes pointed by the statutes, and it cannot make a valid order in the cause at a later term, except to amend the record by nunc pro tunc entry or when expressly authorized by statute. McGonigle v. Bresnen, 44 Mo. App. 423; Campbell v. Spotts, 55 S.W.2d 986; Madden v. Fitzsimmons, 150 S.W.2d 761; 15 C.J. 825. (3) All motions not provided for by statute and unknown to the common law must be acted upon and determined at the judgment term, whether they affect the judgment or not, as the court is without jurisdiction to entertain such motions at a subsequent term of the court. Smith v. Smith, 48 Mo. App. 612; State v. Haid, 327 Mo. 567, 38 S.W.2d 44; State v. Mullon, 322 Mo. 281, 15 S.W.2d 809; State v. Trimble, 311 Mo. 128, 277 S.W. 916. All pre-judgment motions must be ruled before final judgment and the only after-judgment statutory motions, or common-law motions regulated by statute, in this State, are the motions for new trial, in arrest of judgment and to set aside or review a judgment. These motions may be heard at a subsequent term of the court, provided they are filed within the statutory time. Secs. 1171, 1249 and 1267, R.S. 1939; Taylor v. Ry., 333 Mo. 650. The only exceptions to the rule are motions in the nature of a writ of error coram nobis, being common-law motions, and motions to set aside judgments void ab initio. Audsley v. Hale, 303 Mo. 451; State v. Riley, 219 Mo. 667; Crabtree v. Aetna Life Ins. Co., 111 S.W.2d 103; 34 C.J. 217. Motions not provided for by statute or unknown to the common law may be heard after the lapse of the judgment term only in those cases where the court at the judgment term makes an order retaining jurisdiction of the case for the purpose of making further orders therein in the future. Aetna Ins. Co. v. Hyde, 327 Mo. 115, 34 S.W.2d 85. But no such order could have been made in the case under consideration, because the directions of this court on the appeal did not include such an order. Prasse v. Prasse, 342 Mo. 388, 115 S.W.2d 807. (4) The only law authorizing proceedings for damages on an injunction bond is Sec. 1673, R.S. 1939. The above section is only operative in cases where a temporary injunction is granted and a bond filed; and the assessment of damages pursuant thereto, while independent in its nature, is essentially a procedural incident of the main suit. The bond is an element of the suit and the temporary injunction is a part of the relief sought in the case. An appeal deprives the court of jurisdiction to assess the damages pending the appeal. State v. Green, 230 Mo. App. 805, 76 S.W.2d 432; St. Louis v. Gas Light Co., 82 Mo. 349; Sec. 1671, R.S. 1939. Damages resulting from a permanent injunction are not recoverable. Toothaker v. Pleasant, 9 S.W.2d 670. The above section makes no provision for process or pleading nor for the time when the damages should be assessed, and the motion to assess the damages is neither a statutory nor a common-law motion and, therefore, it dies with the lapse of the judgment term. The cases hold that the damages must be assessed at the judgment term and that the motion to assess the damages must be filed at the judgment term, but there are no cases holding that the motion, if filed at the judgment term and not acted upon at such term, carries over the jurisdiction of the court to hear it at the succeeding term. Loehner v. Hill, 19 Mo. App. 141; Neiser v. Thomas, 46 Mo. App. 47; Moore v. Bank, 58 Mo. App. 469; Housron v. Welch, 211 Mo. App. 300; Hoffelman v. Franke, 96 Mo. 533. (5) The Legislature, when it decides to give courts a continuing jurisdiction in certain actions usually writes into the statute the phrase "any time," or it prescribes an exact period of time for filing a motion. Secs. 1519, 1240, 1267, 1171, R.S. 1939. (6) Prohibition is the exclusive remedy under the undenied facts of this case. No appeal will lie from a judgment assessing damages on an injunction bond when such assessment is made after the judgment term. School Dist. v. School Dist., 232 Mo. App. 631, 110 S.W.2d 399. However, appeal or writ of error will lie from a judgment on a non-statutory motion or on a statutory motion filed out of time when it is rendered at the judgment term, or from a judgment rendered at any term on a motion to set aside a judgment void ab initio or on a motion in the nature of a writ of error coram nobis, provided of course in each instance a motion for a new trial is timely filed. State v. Hughes, 348 Mo. 1073; State v. Arnold, 197 Mo. App. 1; Hoffman v. Bank, 287 S.W. 874; State v. Ry., 176 Mo. 443; 34 C.J. 216-217. No appeal or writ of error would be available in this case and, if so, neither remedy would avoid the expense, annoyance and delay of a trial. Dahlberg v. Fisse, 40 S.W.2d 606. (7) A court obtains jurisdiction of the subject-matter by operation of law and cannot acquire it by appearance, answer, contesting the proceedings, consent, waiver, or by the doctrine of equitable estoppel. United Cemeteries Co. v. Strother, 342 Mo. 1155. However, the relator has done nothing to waive his rights. He promptly protested against the jurisdiction of the trial court at the succeeding term of court. The fact that a change of judges was granted relator would not give the court jurisdiction. The change, permissible or not, would not vest the special judge with jurisdiction over the subject-matter. State v. Walter, 169 S.W.2d 697; Cole v. Cole, 89 Mo. App. 228; State v. Harris, 159 S.W.2d 799. (8) It is very doubtful if the motion filed by the defendant is a suggestion to assess damages on the injunction bond. It mentions the bond as a historical fact of the case, and suggests judgment for an amount far in excess of the penalty of the bond against the plaintiff in his individual capacity.
Corbett Peal for respondent.
It is admitted that the motion to assess damages on the injunction bond in the case at bar was filed at the same term of court as that at which the court, in obedience to the opinion and mandate of the Springfield Court of Appeals, dissolved the injunction and dismissed the petition. The motion to assess damages on the injunction bond must be filed at the term of the court at which the judgment is rendered dissolving the injunction, as was done in this case, but it is not necessary that the motion be heard or the damages assessed at that term. Sutliff v. Montgomery, 115 Mo. App. 592; Loehner v. Hill, 19 Mo. App. 143; Fears v. Riley, 147 Mo. 453; Wabash R.R. Co. v. Sweet, 110 Mo. App. 100; Albers Commission Co. v. Spencer, 236 Mo. 608.
This is an original proceeding in prohibition which comes on to be heard following the issuance of our preliminary rule directed to respondent, Honorable Everett Reeves, Special Judge of the Circuit Court of Pemiscot County and issued at the relation of J.B. Latshaw, who was plaintiff in an injunction suit brought in said circuit court.
There is no real controversy over the pleadings and we deem them in all essential respects as sufficient.
Respondent has accepted relator's statement of the case which we adopt here, to-wit:
"Relator as plaintiff, on May 6, 1940, filed a suit against one Lem Simpson in the Circuit Court of Pemiscot County, Missouri, to enjoin him from interfering with relator in farming certain land in said county. On May 7, 1940, said court issued a temporary injunction upon relator filing a bond in said cause; issues were joined and the cause was tried December 18, 1940, and cause taken under advisement until December 30, 1940, when judgment was rendered in favor of plaintiff, making the temporary injunction permanent. The defendant appealed to this court and the judgment was reversed and cause remanded with directions to dissolve the injunction (162 S.W.2d 635), which was done July 8, 1942, during the regular July Term, 1942. Thereupon, at the same term, on July 18, 1942, defendant filed his motion or suggestions to assess damages on the injunction bond. The said July Term, 1942, of said circuit court, adjourned to court in course three months later, October 19, 1942. The said motion or suggestions of defendant was neither submitted nor acted upon at said July Term, and no order made relating thereto.
"At the ensuing November Term, 1942, of said court, relator filed as plaintiff a motion in said cause to dismiss the said motion or suggestions of defendant on the ground that the court was without jurisdiction to assess damages after the expiration of the judgment term. Thereafter, relator was granted a change of judges and the respondent was elected special judge, who overruled relator's said motion to dismiss on March 8, 1943, at the March Term, 1943, of said court and announced from the bench that he would later set said motion or suggestions for damages down for trial.
"Before any setting of said motion or suggestions for hearing was made and during the March Term, 1943, of said court, relator filed his application and suggestions for a writ of prohibition in this court May 3, 1943, and this court issued its preliminary rule the same day, which was duly served on respondent and counsel for defendant and a return thereto was duly made and filed by respondent, which did not deny the facts alleged in relator's application, and thereupon relator duly filed his demurrer to said return, praying that the preliminary rule be made permanent."
It will be observed that the judgment dissolving the injunction was rendered during the regular July Term, 1942, of the Circuit Court of Pemiscot County and thereafter, at the same term, defendant filed his motion or suggestions to assess damages on the injunction bond. The said July Term, 1942, adjourned to court in course, and it appears that the motion was neither submitted nor acted upon at the said term and no order made relating thereto.
The point at issue is whether or not respondent, in this situation, has the power or jurisdiction to hear and determine said motion or suggestions to assess damages on the injunction bond at the subsequent term of court.
In the case of Hoffelmann v. Franke (Mo. Sup.), 96 Mo. 533, 10 S.W. 45, the injunction was in aid of the principal suit which was heard on its merits and the injunction dissolved on the 19th day of December, 1881. Thereafter, on the 23rd of April, 1883, a motion was filed for the assessment of damages, but no notice of the motion was served on the opposite party, and the motion was denied. After discussing very briefly the holding of the court in Loehner v. Hill, 19 Mo. App. 144, the court said: ". . . Whether it be admissible to proceed to have an inquiry of damages after the lapse of the term at which the dissolution of the injunction occurs, or not, it would certainly seem requisite after such term had gone by, to notify the opposite party of the proposed inquiry of damages before proceeding to have the same assessed."
The case of Fears v. Riley, 147 Mo. 453, 48 S.W. 828, in discussing a motion to assess damages, referred with approval to the case of Hoffelmann v. Franke, supra, in the following language: ". . . The court held that a motion to assess damages on the injunction bond must be filed at the same term at which the judgment dissolving the injunction was entered (as was done here), and came too late if filed at a subsequent term, especially where no notice of the motion was given to the plaintiff, but SHERWOOD, J., held that the court, even then should have ordered the notice given, and not have dismissed the case." [Moore v. Bank, 58 Mo. App. 469; Wabash R.R. Co. v. Sweet, 110 Mo. App. 100, 84 S.W. 95; Albers Com. Co. v. Spencer, 236 Mo. 608, 139 S.W. 321.]
In the case of Sutliff v. Montgomery, 115 Mo. App. 592, 92 S.W. 515, the court, in discussing a similar matter said: "The principal claim of the plaintiff for a reversal is that under section 3639. Revised Statutes Missouri, 1899, damages on an injunction bond must be assessed at the term in which the injunction was dissolved. But such is not the law. In Loehner v. Hill, 19 Mo. App. 143, Fears v. Riley, 147 Mo. 453, Hoffelmann v. Franke, 96 Mo. 533, and in Moore v. Bank, 58 Mo. App. 469, it is held that the proceeding shall be begun at the term during which the injunction was dissolved to assess the damages on the injunction bond, but no court has held, that we are aware of, that the damages shall necessarily be assessed at said time."
In the case of Konta v. Stock Exchange, 150 Mo. App. 617, 131 S.W. 380, the court said: "As we understand the rule of decision, notice is required in all cases where the damages are sought to be assessed at a subsequent term, and this is true even though the motion itself were filed at the term in which judgment dissolving the injunction was given, for natural justice requires one should be notified that a motion filed several years before was to be pressed for consideration at a given time. Besides the principle of justice which inheres in the proposition, the language of the courts in the following cases indicates such to be the law, unless plaintiff waives notice or voluntarily appears:" (Citing cases.)
Relator contends that since the statute "makes no provision for process or pleading nor for the time when the damages should be assessed, and the motion to assess the damages is neither a statutory nor a common-law motion, . . . it dies with the lapse of the judgment term."
It is stated in the case of Loehner v. Hill, 19 Mo. App. 141, l.c. 144: "The injunction in this case was dissolved upon final dismissal of the suit, and the appellants claim that the cause was out of court, when the motion to assess damages was filed. This claim is not tenable. The meaning of the statute is not that damages must be assessed instanter, when the injunction is dissolved, but simply that the motion to assess damages shall be made before the court, by lapse of the term, has lost the power to entertain a motion for that purpose."
Section 1673, Revised Statutes Missouri, 1939 (Sec. 1673, Mo. R.S.A.), provides in part: "Upon a dissolution of an injunction, in whole or in part, damages shall be assessed by a jury, or if neither party require a jury, by the court; . . ."
It is true, this statute makes no provision for process or pleading or time for the assessment. Nevertheless, in order to carry out the purpose and intent of the Legislature, it should be given a reasonable and practical construction and interpretation. It, in effect, dispenses with the necessity of a suit on the injunction bond; it is not ancillary to nor a mere after-judgment proceeding in the injunction suit, but rather assumes the nature and character of an independent action on the injunction bond, and a change of venue can be taken or an appeal granted from the judgment rendered on the motion to assess damages on the injunction bond. [Ry. Co. v. Ry. Co., 135 Mo. 549, 37 S.W. 540; State ex rel. v. Green, 76 S.W.2d 432; Laumeier v. Sammelmann, 218 Mo. App. 468, 279 S.W. 249.]
If the motion to assess damages on an injunction bond is filed at the term at which the injunction is finally dissolved, it is our view that it may be continued to a subsequent term. [Sutliff v. Montgomery, supra; Konta v. Stock Exchange, supra.]
We have found no cases, neither have we been cited to any by relator or respondent that seem to be directly in point. However, a review of the foregoing cases show that a motion to assess damages on an injunction bond is well grounded in our jurisprudence and is definitely established as a part of our procedure. It is in its nature and effect a pleading which initiates a proceeding to assess damages in such cases, and if not acted upon and no order is made with respect thereto at the judgment term it carries over to the subsequent term and may be heard at that time.
The cases heretofore reviewed do show the trend of judicial thought, and it is our conclusion, and we so hold, that the respondent in the instant case has jurisdiction and power to hear and determine the motion herein.
Therefore, it necessarily follows that the preliminary rule in prohibition heretofore issued should be quashed. It is so ordered. Blair, P.J., and Smith, J., concur.