Summary
affirming lower court's denial of plaintiff's motion to dismiss, where plaintiff obtained temporary injunction, then voluntarily dismissed case, but court entered subsequent order of dismissal requiring bond to remain posted until defendant had opportunity to prove damages, retaining jurisdiction
Summary of this case from Nader + Museu I, LLLP v. Miami Dade Coll.Opinion
No. 67-217.
May 31, 1967.
Appeal from the Circuit Court for Dade County, Ralph O. Cullen, J.
Leff Pesetsky, North Miami Beach, for appellant.
Walter A. Apfelbaum, Miami, for appellee.
Before HENDRY, C.J., and PEARSON and CHARLES CARROLL, JJ.
In 1963, appellant obtained a temporary injunction and posted a Five Thousand Dollar bond. On June 6, 1966, appellant voluntarily dismissed the cause and on June 14, 1966 obtained an order of dismissal without prejudice. This order dissolved the injunction and required that the bond remain posted until appellee shall have an opportunity to prove up such damages as it may have suffered by reason of having been improvidently enjoined, according to the terms of the injunction bond. Appellant moved to dismiss the action on the injunction bond relying on Rice v. White, Fla.App. 1962, 147 So.2d 204, 91 A.L.R.2d 1306. The motion was denied and this interlocutory appeal followed.
A review of all the circumstances reveals that the case of Rice v. White, supra, is distinguishable on its facts from the case before us and we conclude that the lower court correctly denied appellant's motion to dismiss. See Mitchell v. Sullivan, 30 Kan. 231, 1 P. 518 (1883); Hatch v. National Surety Corp., 105 Mont. 245, 72 P.2d 107 (1937). See also: M. Blatt Company v. Southwell, 259 N.C. 468, 130 S.E.2d 859, 862; 28 Am.Jur. Injunctions § 340; Annotations 91 A.L.R.2d 1312.
Affirmed.