LESLIE v. BROWN et al., 90 F. 171

TAFT, Circuit Judge (after stating the facts). It is settled by the cases of Russell v. Farley, 105 U. S. 433, and Meyers v. Block, 120 U. S. 207, 7 Sup. Ct. 525, that the court which grants an injunction, and takes an injunction bond, to save the defendant from loss caused thereby, may, in an ancillary proceeding, summarily enforce this bond against the sureties; but in such a proceeding, at least when the amount of recovery is uncertain, the sureties must have notice and their day in court before the amount of damage is fixed against them. The amount of recovery under this bond was not certain.

We have no doubt that an action at law in the federal court may be brought on such a bond, provided the necessary amount is involved, on the ground that the plaintiff is enforcing rights secured to him under the constitution and the laws of the United States. The cases of Merryfield v. Jones, 2 Curt. 306, Fed. Cas. No. 9,486, and Bein v.

Heath, 12 How. 168, referred to by the learned judge at the circuit, in which a contrary view is taken, were decided at a time when the circuit courts of the United States did not have original jurisdiction to enforce causes of action arising under the laws and constitution of the United States. This branch of the jurisdiction of the circuit courts was not conferred until the act of 1875. Coming now to the merits of the case, we concur in the view of the court below that the petition of the plaintiff was based upon the judgment against the sureties entered in the suit in equity.

It is manifest that the judgment entered in the equitable proceeding was a mere agreement between the obligee of the injunction bond and the principal obligor, and that the sureties on the bond had no notice of the judgment by process and did not consent thereto. Such a judgment rendered, without notice or process, of course was void. The demurrer was properly sustained. An application was made, after the court’s ruling, for leave to amend the petition so as to set out in detail a breach of the bond, without reliance upon the judgment. The learned judge refused to allow this amendment.

We cannot say that this was an abuse of his discretion. There ought, however, to be no doubt created by the dismissal of this petition which would embarrass the obligee in the injunction bond in bringing a new suit upon that bond, in which he may be permitted to set up the actual damage which was suffered, and for which the bond renders the sureties liable.

The court, therefore, is directed to modify the judgment rendered by inserting therein that the dismissal of the petition is without prejudice to the right of the plaintiff to tile a new suit upon the injunction bond, in which he shall not base his right for recovery upon the judgment in equity. Thus modified, the judgment of the court below is affirmed.