155 Iowa 588 | Iowa | 1912
There was a previous suit between the parties, wherein the plaintiff herein was defendant and the present defendant, Stark & Co., was plaintiff. The present action is upon the injunction bond filed in that suit. No claim is made here for any other damages on the injunction bond than for attorney fees and loss of time in the defense of such former suit. In such former suit a temporary injunction was issued and was dissolved one month later upon the final hearing of the case upon its merits. On the date of the trial a formal motion to dissolve the temporary writ of injunction was filed. It may also be assumed that the submission of the ease upon the merits carried with it the submission of the motion. In no other sense was there any hearing upon the motion. The trial court in this case dismissed the petition of the plaintiff herein on the ground that he was not entitled to recover attorney fees and loss of time in a mere defense of the main suit in the injunction proceeding, and that no expense was shown to have been incurred in obtaining the dissolution of the writ of injunction, except the expense of defending the main suit.
It is well settled that where an injunction is the sole relief sought, and a temporary writ is executed and after-wards dissolved, then the defendant in such injunction suit is entitled to recover upon the injunction bond his necessary costs and expenses in obtaining such dissolution including attorney fees. On the other hand, where an injunction is not the sole relief sought, but is auxiliary and external to the main action, then, in an action on the injunction
As to the general statement of the legal rule in such a case there is no substantial difference between the parties. The application of the rule presents the point of departure between them. On the part of the appellant, it is contended that, in the former suit between the parties, injunction was the sole relief sought; whereas, on the part of appellee, it is claimed that the remedy by injunction- was auxiliary only and that the merits of the controversy between the parties remained to be tried regardless- of a particular form of relief. The pleadings in the former case are before us. The petition of plaintiff therein alleged that Burnett (defendant therein) was one of its employees, and had been- such for some years prior thereto, in the business of bridge building, and that while so in such plaintiff’s employment he had entered into negotiations with Iowa county for a contract in his own name, in violation of his duty toward his employer, and that he had either signed a contract, or was about to do so. Such petition contained the following -prayer: “Wherefore, the plaintiff asks that the defendant be enjoined and restrained from making a contract in his individual name and otherwise than in the name of, and on behalf of, this plaintiff, with said Iowa county; that if the said contract has been in fact made,
It will be noted that the case does not involve the right of the plaintiff herein to recover such damage, if any, as resulted to him otherwise than in the form of cost and expense of defense.
We reach the conclusion that the trial court properly directed the verdict. — Affirmed.