Curtiss

In an action brought in the superior court of San Francisco against the appellant by one Nettie Gilman, a preliminary injunction was issued by the court, and the respondents herein were the sureties in an undertaking given on her behalf upon the issuing of said injunction. The condition of the undertaking is: “ In case said injunction shall issue and remain in full force and effect, the said plaintiff will pay to the said parties enjoined such damages, not exceeding the .sum of five thousand dollars, as such parties may by reason of the said injunction sustain, if said superior court finally decide that the said plaintiff was not en *436 titled thereto.” The present action was brought to recover from the respondents the damage sustained- by reason of the issuance of the said injunction. Upon a former appeal in this cause (Curtiss v. Bachman, 84 Cal. 216 ) a judgment that had been rendered in favor of the plaintiff was reversed, with directions to sustain the defendant’s demurrer to the complaint. Upon the going down of the remittitur the plaintiff amended his complaint, and the cause was tried by the court without a jury, who found that the plaintiff had not sustained any damage…

dissented.