BAER v. FIDELITY & DEPOSIT CO. OF MARYLAND, 130 F. 94

PER CURIAM. Nowhere in the declaration or exhibit do we find anything to show that the bond sued on was given under any law, order, or rule of court. So far as the transcript goes, it was a voluntary bond given in an equity suit, heretofore pending in the Circuit Court for the Southern District of Florida, wherein Kerr and others were plaintiffs, and Baer was defendant, to cover damages arising out of certain orders of court issued therein, which damages, if not saved to the parties by some protecting order specially given by the court, were damnum absque injuria.

On such a bond no recovery can be had, because no damages can be proved. Russell v. Farley, 105 U. S. 433, 439, 26 L. Ed. 1060. Both parties, in oral argument and briefs, ask us to look into the record in the said case of Kerr et al. v. Baer et ah, 109 Fed. 1059, which, after final decree, was appealed to this court, and take judicial notice of, and treat as a part of this case, the order therein issued providing for the bond sued on. If we follow counsel in this request, and look into the said record, we find that the Circuit Court made an order providing for the deposit of $45,000 by George J.

Baer, and the giving of a bond of $15,000, as conditions upon which an order appointing a receiver and granting an injunction in aid of such receivership would be set aside, and in the same order we find the following: . “And it is further ordered, adjudged, and decreed that the complainants herein, within three days from this date, do cause to be filed in this court a good and sufficient bond, payable to the defendant George J. Baer, to be approved by the court, in the sum of §5,000, conditioned to indemnify the said defendant George' J.

Baer against any damages he may sustain by reason of depositing the aforesaid sum of §45,000 in the National Bank of Jacksonville to abide the decree of the court in the cause, and giving bond in the further sum of §15,000. in the event this cause shall be finally adjudicated in favor of the said defendant George J. Baer.” This order providing for the giving of the bond herein sued on distinctly provides that it was to be conditioned to pay damages in the event that the cause should be finally adjudicated in favor of the defendant George J. Baer.

The bond sued on is to be construed in the light of,-and in connection with, the order of court requiring it, and therefore the condition to pay damages in the event the cause should be finally adjudicated in favor of the said defendant George J. Baer should be treated as written in the bond. A further inspection of the record of this court in the same case shows that there was ho final adjudication, so to speak, in favor of the defendant Baer.

Many of the issues put forward by him were decided in his favor, but the decree of the court was against him, and that decree was predicated upon the proposition that there was a partnership between the parties, in which prior to the suit the defendant Baer held all the assets, and the decree finds that there was in the hands of George J.

Baer a very large amount of partnership assets, of which $34,088.44 were due the complainants, and $9,986.12 were due to other parties, and the $45,000 paid into court was awarded to pay the same; so that Baer recovered little, if anything, after paying costs adjudged against him, of the original $45,000 deposited by him.

And we may remark that this shows a very good reason ■why this court, in its final decree, although our attention was called thereto, allowed no damages in favor of Baer for having paid the $45,000 into court, and for giving a bond of $15,000; and it shows affirmatively that by neither giving bond nor paying the money into court under the order of the court was Baer legally or otherwise damaged. And taking judicial notice, as requested, of the record in the former case, enables the better to follow the learned circuit judge in his construction of the bond in suit.

With the former record before us, the words “as the court may determine,” inserted in the bond, may well be construed as referring to the court then having jurisdiction of all the issues. It is hardly to be supposed that the court was inviting other and outside litigation to follow final decree in the case. A construction leading to such result should be avoided as not in harmony with equity practice and principles. Equity does not favor a multiplicity of suits,- and, when a court of equity has jurisdiction for one purpose, it usually takes jurisdiction for all. And see Oelrichs v. Spain, 15 Wall. 211, 228, 21 L.

Ed. 43. In any proper view of the case before us, we are satisfied that the judgment dismissing the suit was correct, and it is affirmed.