Bennett v. Pardini — 63 Cal. 154

Majority

p. 154

[Department Two.

February 15, 1883.]

JOHN D. BENNETT, Appellant, v. N. PARDINI et al., Respondents.

Headnote

Injunction—Dissolution—Action on Undertaking. — One Orondona brought an injunction suit against John D. Bennett, the plaintiff herein. An undertaking was given, and a preliminary injunction issued as prayed for in the complaint. Bennett moved to dissolve the injunction on the ground that the complaint did not state facts sufficient to constitute a cause of action, and the motion was granted. He also demurred to the complaint on the same ground, and the demurrer was sustained, and notice thereof duly given. Twenty-one

p. 155

days after the service of the notice, the complaint not having heen amended, and nothing further done in the case, an action was commenced on the undertaking. The defendants objected that the action was prematurely brought. Held, that the proceedings in the injunction suit amounted to a final determinar tian that Grondona was not entitled to the injunction, and that the objection made by the defendants was untenable.

Findings—Judgment.—If findings are not waived it is error to enter judgment without them.

Appeal from a judgment of the Superior Court of the city , and county of San Francisco, and from an order refusing a new trial.

Pillsbury & Titus, for Appellant.

Aug. D. 8plivalo, for Respondents.

This is an action upon an undertaking on injunction.

It was contended in the court below that the action was prematurely brought. That court sustained the contention, and gave judgment for the defendants, who were sureties on the undertaking.

The injunction order, upon the granting of which the undertaking sued on was given, was made in the case of Grondona v. Bennett, plaintiff here, and the writ of injunction was issued thereon on the 3d day of November, 1879. On motion of Bennett on the 12th of December, 1879, the injunction ivas dissolved. It appears that the motion to dissolve the injunction was made on the complaint alone, and the order granting this motion was based on the sole ground that the complaint did not state facts sufficient to constitute a cause or action. A demurrer to the complaint on the same ground was, on the 14th of January, 1880, sustained, and the plaintiff had leave to amend within ten days. Notice of the ruling on the demurrer was served on Grondona on the same day. Grondona did not amend, and nothing further has ever been done in the cause.

This action ivas commenced on the 4th of February, 1880, twenty-one days after the service of the notice above mentioned.

We think the foregoing facts show that it was finally decided that Grondona was not entitled to the injunction on which the undertaking was given. To hold the contrary because a judgment was not entered upon the failure of Grondona to amend,

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would be adhering to form and disregarding substance. We think that this action was not prematurely brought.

No findings were filed or waived in this case, and this was error.

Judgment and order reversed, and cause remanded.

Hearing in Bank denied.