Opinion
File No. 12682
On this motion that the plaintiffs be required to furnish a bond on the issuance of a temporary injunction, pursuant to section 5899 of the General Statutes, Revision of 1930, the facts appear, that an action was brought against one Leary in which it was sought to attach certain shares of stock in a Connecticut corporation standing in the name of one Peterson and claimed by the plaintiffs to be in reality the property of the defendant Leary, and certain other shares of stock standing in the name of the defendant Leary but claimed to be the property of said Peterson. In aid of the attachment which was sought an injunction was issued to restrain the defendant and the corporations from transferring the stock. No bond was required of the plaintiffs on the injunction. Peterson, the movant herein, was, and is, a nonresident absent from this State. He is not a party to the action and the injunction has not been served on him. The motion is denied. The statute (Gen. Stat. [1930] § 5899) directs that on the issuance of a temporary injunction, a bond shall be given to the opposite party to answer all damages in case the plaintiff shall fail to prosecute the action to effect, unless for good cause shown the judge who issues the injunction is of the opinion that the injunction ought to issue without bond. It is not customary, nevertheless, to require the bond directed by the statute on injunctions issued in aid of the attachment of corporate stock, since unless the action in which the attachment is made is one which is maliciously instituted, the defendant has no right to complain of any attachment. Our law permits an attachment as a matter of right, and any damage which accrues to a defendant as a result of an attachment is damnum absque injuria. When the attachment is of corporate shares, which, in order to be complete, requires an injunction restraining transfer of the shares, there would ordinarily be no purpose, therefore, in requiring the plaintiff to give bond to secure the defendant against legal damage. The movant Peterson has no standing to make the motion, since he is not a party defendant. If the movant desires any relief on a motion in this action, it is fundamental that he must first intervene and become party to the action. Moreover, because the movant is not a party to the action he would derive no advantage from a bond such as he is requesting. The bond required by the statute runs only "to the opposite party.'
MEMORANDUM FILED MARCH 15, 1938.
Cohen Cohen, of Hartford, for the Plaintiffs.
Josiah H. Peek, of Hartford; Frederick H. Waterhouse, of Hartford, for the Defendants.
T. V. Meyer, of Waterbury: Michael J. Galullo, of Waterbury, for Garnishees.
Memorandum of decision on motion that plaintiffs be required to furnish a bond on the issuance of a temporary injunction.
This is an action brought against Daniel J. Leary in which it was sought to attach certain shares of stock in The Waterbury Trust Company, a Connecticut corporation, standing in the name of Francis Peterson which the plaintiffs claim are in reality the property of the defendant and certain shares of stock of Diamond Ginger Ale, Inc., standing in the name of the defendant but claimed to be the property of Francis Peterson. In aid of the attachment which was sought an injunction was issued to restrain the defendant and the corporations from transferring the stock. No bond was required of the plaintiffs on this injunction. Francis Peterson was and is a nonresident of and absent from this State. He is not a party to this action nor was he served with the injunction. This motion is one filed by Francis Peterson and is that the plaintiffs be required to furnish a bond on the injunction.
Although the statute, section 5899 of the General Statutes, Revision of 1930, directs that upon the issuance of a temporary injunction a bond shall be given to the opposite party to answer all damages in case the plaintiffs fail to prosecute the action to effect unless for good cause shown the judge issuing the injunction is of the opinion that such injunction ought to issue without bond, nevertheless, it is not customary to require such a bond on injunctions issued in aid of the attachment of corporate stock. The reason for that is that, unless the action in which the attachment is made is one which is maliciously instituted, the defendant therein has no right to complain of any attachment. Under our law which permits an attachment as a matter of right it is no violation of a defendant's right for an attachment of his property to be made. He, therefore, suffers no legal damage. Any damage which he suffers is damnum absque injuria. He can not recover from the plaintiff for any damage resulting to him from such an attachment. Accordingly, there is no reason, when the attachment is of corporate shares, which attachment in order to be complete requires an injunction restraining their transfer, to require the plaintiff to give bond securing the defendant against legal damage. If no such damage can accrue to the defendant there is ordinarily no reason to require a bond for his protection against it.
Whatever may be said generally on this subject, however, the complete answer to the present motion lies in the fact that the mover, Francis Peterson, is not a party defendant in this action. This consideration operates in two ways. In the first place he has no standing to make the motion. If he desires any relief on a motion made in this cause of action, he must first intervene and become a party to this action. That is fundamental.
In the second place it follows from the fact that he is not a party that he would derive no advantage from such a bond as he is requesting. The bond required by the statute is one which runs "to the opposite party". Francis Peterson not being an opposite party in this action certainly a bond on the injunction taken in accordance with the statute would in no way protect him against damages even though he sustained damage by reason of the failure of the plaintiffs to prosecute the action to effect.