Can the plaintiffs sue until the final determination of the case of Nichol v. Littlefield? We think he clearly can not. The undertaking is statutory, and the liability is only on condition that " the Court finally decide that the plaintiff was not entitled thereto." ( C. C. P., § 529.)
Now, was the interlocutory order made on the twenty-fourth of February, 1876, the final decision contemplated by the statute? Was it indeed more final than that portion of the same order continuing the cause for the term?
Is there anything extraordinary in the case at bar which takes it out of the rule so correctly stated by appellant's counsel? If so, what is it? He further says inferentially, that there are exceptions to the rule, and the case at bar is such an exception, and cites Fowler v. Frisbie , 37 Cal. 35, in which the order dissolving the injunction was made at the trial, and though no judgment was offered, there was no showing that the case was not finally decided. There is not even a distant analogy between the two cases. And further to show that the case at bar is an exception to the rule above stated, and is subject to the extraordinary conditions where a final judgment may be dispensed with, he cites Dowling v. Polack , 18 id. 626. In this last case, there was a judgment of dismissal of the case before the suit on the undertaking was brought, and the question was whether such judgment was a final decision as to the injunction. Held: " In effect, a dismissal is a final judgment in favor of the defendants." (Id. 629.)
Whatever reasons counsel may have given to sustain his claim that the case at bar is not within the rule stated by him, the only authorities he has cited on this point are the two cases, Dowling v. Polack, and Fowler v. Frisbie, in neither of which was the injunction suit pending at the time the action was brought on the undertaking.
The order was not a judgment, final or otherwise. (Freeman on Judgments, § 15.) But was merely an interlocutory order. ( C. C. P., § 1003.) And subject, at any time before the case was finally disposed of, to be vacated or modified on motion. (Templeton v. Twelfth Dist. Ct. , 47 Cal. 70.)
To have given the plaintiff a right of action on this bond " the Court must decide that the plaintiff was not entitled to the order (injunction). This must be a final decision; that is, made at the termination of the case by a decree or judgment therein, or by the voluntary discontinuance of the suit." (Shearman v. N. Y. Central Mills, 11 How. Pr. 269.) And this rule is quoted by the Court in Dowling v. Polack , 18 Cal. 628, of the opinion.
With all his acknowledged learning and industry, counsel has not cited a single case where an obligee in an injunction bond has been permitted to sue on the bond before the final termination of the suit in which the bond was given. He can not, in our opinion, find such a case, and for the obvious reason that the Court, although it had dissolved an injunction by an interlocutory order, might renew it, and make it perpetual in the final judgment in the case. (Hicks v. Compton , 18 Cal. 206; Grinter v. Compton, id. 210; Bentley v. Joslin, Hempst. 218; Fanning v. Dunham, 4 Johns. Ch. 36; S. C., 9 Am. Dec. 283; James v. Downes, 18 Ves. Jr. 522.)
An action on an undertaking given for an injunction, can not be maintained until the action in which the injunction issued is disposed of by a final decree or judgment. (2 High on Inj., § 1649; Bemis v. Gannett, 8 Neb. 236; Gray v. Veirs , 33 Md. 159; Penny v. Holberg , 53 Miss. 567; Thompson v. McNair , 64 N.C. 448; White v. Clay's Ex'rs, 7 Leigh., 68; Anderson v. Coleman , 56 Cal. 124, concurring opinion.)
OPINION The Court:
In this cause we are of opinion that the action was prematurely brought, and the nonsuit was properly granted.
Judgment affirmed.