In my opinion the injunction order made on the 26th day of July, 1920, and served on the following day was null and void for the reason that no undertaking was required before allowing the same. The bond or undertaking was not executed and filed with the clerk until August 3, 1920. The injunction order was therefore in direct violation of section 6-402, Oregon Code 1930, which provides:
"An injunction may be allowed by the court, or judge thereof, at any time after the commencement of the suit and before decree. Before allowing the same, the court or judge shall require of the plaintiff an undertaking, with one or more sureties, to the effect that he will pay all costs and disbursements that may be decreed to the defendant, and such damages, not exceeding an amount therein specified, as he may sustain by reason of the injunction if the same be wrongful or without sufficient cause."
The execution of the bond and its filing with the clerk are conditions precedent to the issuance of the injunction order. Compliance with the plain, mandatory, and imperative provisions of the above section was essential to the jurisdiction of the court. The order in question was not "irregular," but was absolutely void. The rule is thus stated in 32 C.J. 318:
"According to the weight of authority, where the statute requires that the party applying for an injunction shall, as a condition precedent to its issuance, execute a bond or undertaking, with sufficient sureties, an injunction issued without such bond or undertaking is inoperative and void * * *." Citing numerous authorities in support of the text, among which is State v. La Follett, 100 Or. 1 (196 P. 412).
In construing the statute relative to the allowance of injunctions, Mr. Justice HARRIS, speaking for the court in Statev. La Follett, supra, said: *Page 422
"The language of the statute is imperative, for the wording is `Before allowing the same, the court or judge shall require of the plaintiff an undertaking.' This statute in effect declares that judges and courts are without jurisdiction and therefore without power to allow temporary injunctions unless anundertaking is first filed * * *. The giving of an undertaking is indispensable. The court could not dispense with that which the legislature has declared to be indispensable. Although the court acquired jurisdiction over the suit, it did not acquire jurisdiction to allow a preliminary injunction in the ancillary proceeding attempted to be prosecuted by the plaintiff."
In that case we also find the following significant language:
"* * * if the order was made without jurisdiction it was absolutely void."
It is true that in the La Follett case the matter before the court was a contempt proceeding, but if an injunction order was void therein for the reason that no undertaking was filed prior to its issuance it would seem, on principle, that such an order would be void here for the same reason.
Having reached the conclusion that the order in question was a nullity, the next logical inquiry is: What consideration was there for the bond? It is said by Mr. Justice CAMPBELL that the consideration was "for the stoppage of the work that they received," but can it be said that the plaintiff stopped work by virtue of a void order? If the company stopped work it was its own voluntary act and it cannot be said to have been so compelled by reason of anything which the court did when acting beyond its jurisdiction and in plain violation of the statute. The injunction, on its *Page 423 face, informed the plaintiff that it was a mere nullity in that it called for the subsequent execution of an undertaking. Estoppel in pais is, therefore, not involved as the plaintiff cannot, as a matter of law, have been misled by an order having no force or effect.
Defendants have a right to rely upon the express terms of the bond and their liability will not be extended beyond such terms. The bond recites:
"Whereas, the above named plaintiffs have commenced a suit in the Circuit Court of the State of Oregon for Multnomah county, against the above named defendants, and have heretofore obtained an injunction in said suit against said defendants, enjoining and restraining them from the commission of certain acts, as in the order for said injunction is more particularly set forth and described.
"Now, therefore, we U.S. Grant (et al.), as principals and United States Fidelity Guaranty Co., as surety, in consideration of the premises and of the issuing of said injunction, jointly and severally undertake and promise that the said plaintiffs shall pay all costs and disbursements that may be decreed to the defendants, and such damages not exceeding a sum of $10,000, as defendants, or either of them, may sustain by reason of the said injunction, if the same be wrongful or without sufficient cause."
If the undertaking was given in consideration of an injunction which had been issued and served eight days previously, then, under the authority of State v. La Follett, supra, and cases cited therein, it was without any consideration whatsoever and was, therefore, void. If it be argued that the undertaking was given in consideration of an injunction to be issued in the future, then it is answered that no such injunction was ever issued. *Page 424 Carter v. Mulrein, 82 Cal. 167 (22 P. 1086, 16 Am. St. Rep. 99), which was an action on an injunction bond, is squarely in point and supports the theory of appellants. The court there said:
"It fully appears from the complaint, and is admitted on the argument, that * * * an order was signed by the judge of the court on March 3, 1881, and filed March 4, 1881, that an injunction issue `on the filing by plaintiff of a joint and several undertaking to the defendants in the sum of $7,500, with two sufficient sureties;' that on said March 4th, a writ of injunction was issued and served; that said writ was the only writ of injunction ever issued in said action; that all the alleged damage to plaintiff was caused by his obedience to that writ; and that the bond sued on in the case at bar was not executed until March 12, 1881, eight days after the issuance and service of said writ. The bond recites that `Whereas, the above entitled court has made an order that upon the filing by the above-named plaintiff of an undertaking in the sum of $7,500, with two sufficient sureties, a writ of injunction issue: * * * now, therefore, in consideration of the premises, and that said writ of injunction may issue, we' undertake, etc. No writ issued after the filing of the undertaking. It is well settled that sureties on statutory bonds, having no personal interest in the litigation, can stand upon the express terms of their undertaking, and cannot have their liability forced beyond those terms. `A surety has a right to stand on the precise terms of his contract. * * * He can be held to no other or different contract': People v. Buster, 11 Cal. 220. `His liability arises under his contract merely and is limited by its terms and conditions': McDonald v. Fett, 49 Cal. 355. `If there is any principle of law well settled, it is that the liability of sureties is not to be extended beyond the terms of their contract. To the extent, and in the manner, and under the circumstances pointed out in their obligation, they are bound, and no further. They are entitled to stand on its precise terms':Pierce v. Whiting, *Page 425 63 Cal. 543. In the bond sued on in this case there is no undertaking by the sureties to protect against the injunction which had been issued on March 4. It referred entirely to a writ of injunction which might issue, by virtue of the undertaking, upon or after its filing; and no such writ ever issued. No doubt the defendant in that case (plaintiff in this) relied upon that undertaking; but we cannot wrest settled principles of law from their foundations in order to condone the carelessness of parties who fail to look after their rights at the proper time. If the defendants in the injunction suit had paid the slightest attention to their interest when the bond sued on was filed, they would have discovered that it afforded no protection against the writ which had for several days been issued and served, and that said writ was invalid, unless, indeed, we must presume that some other bond had been filed before the writ issued."
Also to the same effect see Alaska Improvement Co. v. Hirsch,119 Cal. 249 (47 P. 124, 51 P. 340). These two cases are conceded by counsel for plaintiff to support the theory of appellants.
In my opinion the defendants, for the reasons stated, were entitled to a directed verdict, since no liability could be predicated upon a bond given without consideration: 32 C.J. 455.
ROSSMAN and KELLY, JJ., concur in this dissenting opinion. *Page 426