Ballard, Adm'r, v. The Franklin Life Insurance Company. by an agent not having authority, is a mere spoliation, which does not release the parties. Brooks v. Allen, 62 Ind. 401. A fraudulent alteration by the payee will prevent him from recovering either on the note or on the original consideration. Martendale v. Follet, 1 N. H. 95; Clute v. Small, 17 Wend. 238, 242. The judgment in the former suit ascertained the fact that there had been a fraudulent alteration of the note by the payee. These replies seek to avoid the effect of that judgment by raising an issue which might have been raised, and, for aught apparent on the pleadings in this suit, actually was raised and determined in the former suit. The legal effect of the former judgment can not be impeached or obviated in any collateral proceeding. A question once decided between the parties upon the same cause of action, by the judgment of a court of competent jurisdiction, can be reversed or reconsidered only by a direct proceeding for that purpose; and, in general, no allegation or evidence, tending to impeach a judgment, will be admitted in any subsequent distinct controversy between the parties. When a matter is finally determined by a competent tribunal, it is considered as forever at rest, not only as to what was actually determined, but as to every other matter which the parties might have litigated in the case. Fischli v. Fischli, 1 Blackf. 360 (12 Am. Dec. 251). And the rule is the same where a suit is sought to be sustained upon allegations which would have been a good defence in a previous action between the parties. In Marriott v. Hampton, 7 Term Reports, 265, LAWRENCE, J., said: "It goes the length of establishing this, that every species of evidence, which was omitted by accident to be brought forward at the trial, may still be of avail in a new action to overhale the former judgment; which is too preposterous to be stated." See also Moody v. Thurston, 1 Strange, 481; Bateman v. Willoe, 1 Sch. & L. 201; Le Guen v. Gouverneur, 1 Johns. Cas. 436; Grant v. Button, 14 Johns. 377; Swan et al. v. Timmons et al. Holden v. Curtis, 2 N. H. 61; Thatcher v. Gammon, 12 Mass. 268; Shriver v. The Commonwealth, 2 Rawle, 206. The court therefore erred in overruling the demurrers to the second and third replies, and as the judgment must be reversed and a new trial awarded for these errors, it is unnecessary to consider the reasons alleged in support of the motion for a new trial. PER CURIAM.-It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be and it is hereby in all things reversed, at the costs of the appellee, and this cause is remanded, with instructions to the court below to sustain the demurrers to the second and third paragraphs of the reply. No. 8529. SWAN ET AL. v. TIMMONS ET AL. INJUNCTION BOND.-Action on.-Judgment in Another Action not a Bar.- From the Jasper Circuit Court. D. E. Straight and U. Z. Wiley, for appellants. S. P. Thompson and D. J. Thompson, for appellees. ELLIOTT, C. J.-The questions presented by this appeal arise upon the ruling refusing appellants a new trial. In order to understand the questions requiring consideration, it is necessary to give a synopsis of the evidence. In 81 243 e165 19 Swan et al. v. Timmons et al. April, 1875, the appellee Henry Timmons obtained a judgment against the appellant John W. Swan; in June, 1877, an execution was issued on this judgment, and an action for an injunction to restrain its enforcement commenced by the appellant in the Benton Circuit Court; no order, however, was obtained afterwards, but before the dismissal of the action in the Benton Circuit Court, appellant instituted another action for the same cause, and seeking the same relief, in the Circuit Court of Warren county. To this latter action the appellee pleaded the pendency of the former action, and the appellant was compelled to dismiss his suit. In the action brought in Warren county, the injunction bond, upon which this action is founded, was executed and filed. On the trial of the present cause, the appellant offered in evidence a transcript of the proceedings in a subsequent suit for injunction, wherein he obtained a decree, perpetually enjoining the enforcement of the judgment of the appellee. The fact, that the appellant subsequently obtained an injunction, can not defeat this action. The failure in the action in which the bond was executed gave the appellee'a right to some damages. The measure of damages in cases where the failure to sustain the application is solely because of another action pending, may be, and perhaps is, different from that in which the failure is because of a want of meritorious ground for relief; but, however this may be, it is plain that there is some right of action in such cases. 2 High Injunctions, sec. 1624; 2 Sedgwick Measure of Damages, 208. The excluded evidence was clearly not admissible in bar of the action, for the reason that the appellee was entitled to recover the expenses incurred in securing its dissolution. Was this record admissible in mitigation of damages? If the appellee was seeking a judgment for some loss by reason of the delay occasioned by the injunction, then the evidence would probably have been competent. In Andrews v. The Glenville Woolen Co., 50 N. Y. 282, it was said: “On an assessment of damages, caused by an injunction which restrains Swan et al. v. Timmons et al. legal proceedings for the collection of a demand, it is not competent to go into the merits of the proceedings restrained, unless, perhaps, in a case where the party prosecuting the reference claims as damages the loss of his demand; where, as in this case, he merely seeks to recover his expenses of getting rid of the injunction, the merits of the proceeding restrained are not a proper subject of inquiry. If the restraint was wrongful the party restrained had a legal right to have it removed, and is entitled to his expenses reasonably incurred in establishing that right." In dismissing his suit for an injunction, the appellant confessed that he had at that time no legal or equitable right to the relief sought, and the dismissal was a breach of the bond. Reeves v. Andrews, 7 Ind. 207; Dowling v. Polack, 18 Cal. 625; Loomis v. Brown, 16 Barb. 325. Where a party applies for an injunction and is forced to a dismissal by a plea in abatement, he can not, in an action upon the bond, have his right to another injunction determined. The dismissal of the action in which the bond was executed is such a breach as vests in the obligee a right of action for expenses incurred in making the necessary resistance; and in estimating damages in such a case, it is proper to take into consideration such reasonable attorney's fees as may have been necessarily paid, or contracted for in making the proper resistance. Beeson v. Beeson, 59 Ind. 97; Raupman v. The City of Evansville, 44 Ind. 392. As the appellee was entitled to recover such expenses as he incurred in opposing the application, and as he seeks no recovery on account of injury inflicted by the operation of the restraining order, the proceedings in the subsequent action wherein the merits of the controversy were determined were clearly not competent. The case of Jenkins v. Parkhili, 25 Ind. 473, is not here in point. In that case a recovery was sought for injury resulting from the operation of the injunction; but here there is no such relief asked. The evidence and the instructions show that the only damages sought were such as grew out of the Swan et al. v. Timmons et al. resistance to the application for injunction, which was afterward dismissed. In Starr v. Cass, 23 Ind. 458, the plaintiff claimed that an injunction obtained against the officer had enabled the debtor, by preventing a levy, to dispose of his property, and thus defeated the collection of the plaintiff's judgment. It is evident that the case in hand bears no resemblance to the one cited. In criticising the instructions of the court, counsel say that they are erroneous because they instruct the jury that counsel fees may be allowed for defending the suit, whereas only counsel fees for resisting the injunction are allowable. It is true that, where there is other relief sought, the counsel fees should be restricted to those necessarily incurred in defeating the injunction. 2 High Injunctions, sec. 1688. But where, as here, the only relief sought in the action in which the bond was executed is an injunction, counsel fees are properly awarded as to the entire suit. We regard the second instruction as limiting the amount of the recovery to the expenses incurred in resisting the application for injunction. The portion of the instructions. touching this point is as follows: "If the jury find for the plaintiffs, they will be entitled to a verdict for the damages and costs which accrued to them by reason of such injunction. This will include the reasonable expenses of the plaintiffs for necessary time spent and necessary expenses incurred, including attorney's fees in defending against said suit." Taking the instruction as an entirety, we think it properly limits the measure of damages. It is evident from the damages awarded -fifty-three dollars-that the jury understood the instruction as restricting the recovery to the expenses necessarily incurred in resisting the injunction. Judgment affirmed. |