The foregoing opinion disregards the fact that this is an action on a bond given to indemnify respondent and Adams, in case damage resulted to them from the issuance of the temporary restraining order.
The sheep were to have been sold on the day following the issuance of the order and would have been sold had it not been issued. After this order had been in force a *Page 266 number of days, during which respondent and Adams were prevented by it from selling their sheep, the order and the bond given to secure its issuance were superseded by an injunction pendente life and a bond given, by another surety than appellant, to secure its issuance. If there is liability on the bond sued on in this action the amount of that liability is fixed by the amount of damage, in dollars and cents, suffered by the owners of the sheep by being prevented from selling them between the date of the giving of this bond and the date on which it was superseded by the bond for injunctionpendente lite.
Some of the sheep died, and those which did not die had to be fed, during the time the bond involved in this suit was in force and effect. If the value of the sheep, on the date the temporary restraining order was superseded by the injunctionpendente lite, was equal to or greater than their value at the time they would have been sold had the temporary restraining order not been issued and, in addition to that, was equal to or greater than the cost of feeding and caring for the sheep during the time their owners were restrained from selling them by the temporary restraining order, then the owners were not damaged by the order, for it caused them to lose nothing. Although a number of the sheep died and the feeding and caring for those that did not die was expensive, the market value of those remaining may have sufficiently increased, during the time the restraining order and this bond were in effect, so that when liability attached, pursuant to the injunctionpendente lite, the owners of the sheep had lost nothing. In that event no damage resulted which was covered by the bond sued on in this action, for no loss occurred during the time it was in effect. The bond given to procure the issuance of the injunction pendente lite is liable for any damage which occurred after it was given due to the issuance of that injunction. The evidence does not show what the market value of the sheep was at the time the bond sued on herein ceased to be security for damage and, therefore, fails to show what damage, if any, the owners of the sheep suffered for which this bond is liable. *Page 267
If the majority opinion is sound one who has actually profited by a rising market while delayed in the sale of property, held by him for sale, may recover damages for the delay.
After the temporary restraining order was issued and served a motion to dissolve it was made which, on hearing had in the district court, was denied. The order denying that motion amounted to an adjudication, as provided for by the laws of Idaho, to the effect that the temporary restraining order was not wrongfully issued. An appeal was taken from that order and was abandoned, which puts the case, in this respect, in the condition it would have been in if the appeal had not been taken.
As pointed out in the majority opinion, a temporary restraining order is, in effect, an injunction. Therefore, I. C. A., sec. 11-201, providing for an appeal from an order "granting or dissolving an injunction" and "from an order refusing to grant or dissolve an injunction," applies to it. Section 11-219 provides that "upon an appeal from a judgment the court may review . . . . any intermediate order or decision . . . . except a decision or order from which an appeal might have been taken." That section, by implication, prohibits a review, on appeal from a judgment, of the question of whether a temporary restraining order was issued rightfully or wrongfully, and makes an order, granting or denying a motion to dissolve a temporary restraining order, from which an appeal is not prosecuted, final and conclusive within the meaning of sec.6-405, wherein it is provided that the injunction bond shall be "to the effect that the plaintiff will pay to the party enjoined such costs, damages, and reasonable counsel fees, not exceeding an amount to be specified, as such party may incur or sustain by reason of the injunction, if the court finally decide that the plaintiff was not entitled thereto." Therefore, the order denying the motion to dissolve the temporary restraining order is res adjudicata.
With respect to this phase of the case, it is said in the majority opinion: *Page 268
"If no appeal is taken from the order of the trial court denying the motion to dissolve the restraining order, then the fact that the court found the showing, made by the plaintiff, was sufficient to sustain the restraining order becomes resadjudicata, but not the fact that plaintiff was actually entitled to the restraining order on the merits. If an appeal is taken, such appeal is a limited one. The appellate court merely passes on the question as to whether the showing was sufficient to sustain the order of the lower court, without passing on the actual merits as to whether plaintiff was entitled to a restraining order."
The majority opinion confuses the effect of an appeal from an order granting a temporary restraining order and an appeal from an order denying a motion to dissolve it. If the restraining order is granted and an appeal is taken from the order granting it, the appellate court has before it the one question of whether the showing was sufficient to sustain the order. If defendant does not appeal from the order granting the temporary restraining order, but moves to dissolve it, he may make a showing in support of the motion and plaintiff may join issue by making a showing in opposition thereto. The determination of that issue adjudicates, not the question of the sufficiency of plaintiff's application for a temporary restraining order, but whether he has a right to such order, and it is to be determined by the showing made by both parties. An appeal from an order denying a motion to dissolve a temporary restraining order does not present to the appellate court the sole question as to the sufficiency of the showing made by plaintiff to procure the order, but whether, in the light of the showing made by both parties, the restraining order should have been continued in force or dissolved.
I. C. A., sec. 6-409, provides for making application to dissolve or modify an injunction which has been granted without notice, and secs. 6-410 and 6-411 are as follows:
Sec. 6-410. "If upon such application it satisfactorily appear that there is not sufficient ground for the injunction, it must be dissolved; or if it satisfactorily appear that the extent of the injunction is too great, it must be modified." *Page 269
Sec. 6-411. "Upon the hearing of an application for an injunction upon notice to the adverse party, or upon return of an order to show cause why an injunction should not be granted, or upon an application to dissolve or modify an injunction granted without notice, where the injunction was granted or is applied for wholly or in part upon affidavits, the party resisting the application or moving to dissolve the injunction may, by three days' written notice, require the adverse party to produce at the hearing for cross-examination before the court or judge, the affiants of the affidavits upon which he relies for the injunction, or to resist the application for its dissolution; and any party so requiring his adverse party to produce his witnesses at such hearing must himself produce for cross-examination, the witnesses upon whom he relies upon such hearing; and either party may have the same process to secure the attendance of witnesses at such hearing, as upon trial of issue of fact in the district court; and in such case where the attendance of witnesses shall have been so required, no affidavit shall be read or considered by the court or judge upon such hearing unless the affiant is so produced for cross-examination: provided, that the court or judge may, at the conclusion of the examination of the witnesses produced by the respective parties, for good cause shown, adjourn the hearing to enable either party to secure the attendance of an absent affiant, or may direct his examination to be taken in writing before such officer and at such time and place as the court or judge may designate. The examination of any witness produced before the court or judge must, upon request of either party, be reduced to writing, subscribed by the affiant, certified by the judge and filed in the action, and, with any examination taken in compliance with the order of the court or judge, be made a part of the record upon appeal in the same manner as affidavits are made a part of such record."
These sections of our code provide for complete and final adjudication of the right to a temporary restraining order, or injunction, independently of the trial of the action in which it is granted. *Page 270