(concurring in part and dissenting in part) :
I agree that a new trial should be had because plaintiff submitted ample proof to make out a prima facie case for damages sufficient to take the case to the jury.
I disagree with that part of the majority opinion which holds that recovery may be had for damages accruing after March 21, 1949. That was the day when the restraining order for which the bond was given was dissolved. That is the day when it was finally determined that Ferguson was not entitled to the restraining order for which the bond was given. The restraining order in question was issued on February 14, 1949, and an order to show cause set the matter for hearing on March 8th.
On March 8th the court entered an order continuing the hearing on the motion to dissolve the temporary restraining order until March 18th and continuing the restraining order in effect until that time upon plaintiff Ferguson furnishing a bond in the sum of $1,500 to the effect that he pay to defendants, plaintiffs herein, such damages as they may sustain by reason of the temporary restraining order if the court finally decided that he was not entitled to such relief.
The bond was approved by the court on March 8th. It recites: “Whereas the above named plaintiff has commenced an action therein in the District Court of the State of Montana, in and for the county of Sheridan, against the above-named defendants, and an order to show cause and a temporary restraining order in said action against said defendants, enjoining and restraining them and each of them from the commission of certain acts as in said complaint filed in said action are more particularly set forth and described:
“Whereas on the 8th day of March, 1949, an order was issued by the Court, requiring the plaintiff to furnish a bond in the sum of fifteen hundred and no/100 ($1,500.00) dollars,
“Now, therefore, we E. C. Ferguson, as principal, and Lloyd Kittleson and Anton Nelson, as sureties, in consideration of the premises and for the issuance of said restraining order, do *558jointly and severally, undertake in the sum of fifteen hundred and no/100 ($1,500.00) dollars, and promise to the effect that the said plaintiff will pay to the said parties enjoined such damages, not exceeding the said-sum of fifteen hundred and no/100 ($1,500.00) dollars, as such defendants may sustain or incur, by reason of said restraining order, if the said court finally decide that the plaintiff was not entitled thereto.”
Pursuant to a stipulation signed by counsel for the respective parties the court on March 15th vacated the hearing for March 18th and reset the hearing for March 21st.
On March 21st an order was entered reciting that the matter “having this day regularly come before me for hearing upon the motion of the defendants to vacate and dissolve the temporary injunction heretofore granted in this action, and the plaintiff through his counsel joining in the motion of the defendants, and the court being fully advised in the premises finds that said motion ought to be granted.
“It is hereby ordered that said temporary injunction be and the same is hereby vacated and dissolved, and assessing costs against plaintiff in the sum of $50.00.”
That was a final determination that plaintiff Ferguson was not entitled to the restraining order for which the bond was given. That order was made with his consent and hence he was in no position to appeal from the order and did not attempt to do so.
On March 21st Ferguson filed his affidavit pursuant to R. C. M. 1947, section 93-4205, for the issuance of another and a different temporary restraining order. On that day an order to show cause was issued setting the matter for hearing on April 12th and pending the hearing and as a part of the order to show cause a temporary restraining order was issued.
On April 12th a counter-affidavit was filed and on that day an order was entered dissolving the temporary restraining order issued on March 21st and assessing costs of $50 against plaintiff Ferguson.
The general rule is that sureties have the right to stand on *559the letter of their bond. Bunston v. Labbitt, 84 Mont. 585, 277 Pac. 419; Maier v. Lnce, 61 Cal. App. 522, 215 Pac. 399. This court may not extend their liability beyond the plain wording of the bond. It cannot rewrite the bond.
I think the court properly construed the bond as limiting the liability of the sureties to damages accruing prior to March 21st, the day when the court dissolved the restraining order for which the bond was given. The court in my opinion properly limited proof of damages to those accruing prior to and until March 21st when the restraining order was dissolved. The court might well have continued the first restraining order in effect until final determination of the action, in which case the bond liability would have continued. Bunston v. Labbitt, supra; and see, Bentley v. Joslin, 30 Fed. Cas. page 963, No. 18,232.
But here the restraining order of March 8th for which the bond was given was dissolved. An entirely new restraining order was made based upon a new and different foundation, viz., upon an affidavit pursuant to B. C. M. 1947, section 93-4205. “When an injunction is dissolved, it cannot be revived except by a new exercise of judicial power.” 28 Am. Jur., Injunctions, sec. 321, p. 493.
Defendants’ obligation under the bond of March 8th was limited by its terms to damages for the restraining order then in effect and continued only until it was finally determined that the plaintiff Ferguson was not entitled thereto.
Their obligation was not affected by the fact that there was filed an affidavit on which a new restraining order was issued. Irwin v. Morrow, 19 Ala. App. 115, 95 So. 496. The case of Houghton v. Meyer, Postmaster General, 208 U. S. 149, 28 S. Ct. 234, 236, 52 L. Ed. 432, is analogous.
There a temporary restraining order was issued on May 31, 1902, and a bond was given.
On March 10, 1903, the cause was heard and a perpetual restraining order was issued and no mention was made in the order of the temporary restraining order and no further bond *560was required. On appeal the decree of March 10th was reversed.
It was sought to hold the sureties on the bond for damages covering the period until the reversal of the judgment on appeal. The court pointed out that the restraining order was merely to preserve the status quo until the motion for temporary injunction could be heard.
The court said: “But we do not think the case can be decided upon conjecture as to what bonds might have been required. We must determine the case upon the liability of the principals and sureties on the bond which was actually given.
“When the parties gave this undertaking, the court, exercising its discretion, had required that the restraining order should be upon condition that bond be given to secure the defendant against loss because of this temporary restraint.
“It is true that the restraining order was, by its terms, to be in force until ‘further order,’ to be made, if at all, after hearing. Neither party brought on for hearing the pending motion for a temporary injunction. When the further order was made nothing was said of the restraining order. A new and permanent injunction in favor of the plaintiffs was granted. This decree necessarily superseded the restraining order, and it expired by the limitation contained in its terms, and there was no further liability on the bond, given only to secure that order. ’ ’
The court concluded by saying: “ It is not necessary for us to decide whether further and other security might not have been required under equity rule 93, or otherwise, as a condition of continuing the injunction after final judgment. What we determine is that this undertaking was authorized and given in pursuance of sec. 718, Revised Statutes, and should be construed accordingly. The District court of appeals should have sustained the order of the supreme court of the District, declining to assess any damages on the bond, except for the period from the time the bond was approved until March 10, 1903, the date of the decree in the court of original jurisdiction.”
The only difference between this case and the Irwin Case *561is that in the Irwin Case the temporary restraining order was not expressly dissolved, bnt the court held it was necessarily superseded. Here the restraining order was expressly dissolved and the order of March 21st based upon the affidavit clearly superseded the order of March 8th for which the bond was given. The authorities relied on in the majority opinion holding that damages may be recovered for the entire period of the restraint are all eases in which the temporary restraining order remained in effect until final hearing and decision on the merits. None of them fits the facts of this case.
The case of Miles v. Edwards, 6 Mont. 180, 9 Pac. 814, 815, so strongly relied upon in the majority opinion is readily distinguishable.
There the restraining order required the respondent to appear before the judge “on the twenty-third day of July, A. D., 1884, to show cause, if any he has, why he should not be enjoined * * * and in the meantime, and until the hearing of this order, said defendant * * * be enjoined and restrained”. It was there contended that the restraining order died on the day of the hearing.
All that the court held, and I think properly, was that the restraining order was in effect until there was a decision of the court after the hearing. In other words, the court held that the phrase “until the hearing” meant more than the beginning of the hearing and in fact comprehended a decision after hearing. Here the order and the bond fixed the duration of the restraint not until the hearing but until such time as it is finally determined that plaintiff is not entitled to the restraining order then in effect.
That determination was made when the restraining order was dissolved.
I do not agree with what is said in the majority opinion on the cross-assignments of error. As to those I think they should not be considered because they do not fall within R. C. M. 1947, section 93-8023, because if they have any merit, the judgment in favor of defendants on the merits would still not be justified *562and hence the same result would not follow. If any of the cross-assignments have merit, the plaintiff still should be afforded the right to file an amended complaint.