Creek v. McManus

| Mont. | Apr 10, 1893

De Witt, J.

Appellant contends that the granting of the motion to instruct the jury to find for the defendants was error. This action by the court in a civil case was practically, in effect, the granting of a nonsuit, and must be classified and treated as a nonsuit. That this is the proper view of that action by the court was so fully, and, to my mind, satisfactorily, treated in the recent case of McKay v. Montana Union Ry. Co., ante, p. 15, that it would not be profitable to add to the remarks made in that case. In reviewing the judgment rendered upon the sustaining of that motion for a nonsuit, all facts will be considered as proved which the evidence tends to prove. (Herbert v. King, 1 Mont. 475" court="Mont." date_filed="1872-08-15" href="https://app.midpage.ai/document/herbert-v-king-6637181?utm_source=webapp" opinion_id="6637181">1 Mont. 475; Cans v. Woolfolk, 2 Mont. 463.)

Does the evidence in this case tend to prove any cause of action? The cause of action was for damages occurring by reason of the injunction action of defendant herein against plaintiff herein. One item of the alleged damages is pleaded in the complaint in this case as follows: “That in order to defend said suit and to procure the dissolution of said writ of injunction, this plaintiff (defendant therein) was obliged to and did employ an attorney at an expense of one hundred dollars, which sum so paid was a reasonable sum for said services.” We think that there was evidence tending to sustain this allegation. This action of McManus v. Creek was for an injunction only. The injunction was not asked for in connection with any other cause of action, nor were any damages claimed, nor was any other relief than the injunction asked. Nothing was obtained by plaintiff in that action except a temporary injunction. That temporary injunction was dissolved on the trial of the action, and not upon a separate motion made for that purpose. Plaintiff testified on her examination as a witness as follows: “I am the plaintiff in this case. I was the defendant in the case of John McManus v. Rachael K. Creek, that was tried about a year ago, and in that case I employed a person to resist the injunction which had been served on me in that case. I employed Judge Liddell to dissolve the temporary injunction, and to resist the perpetual injunction, and that was the only purpose for which I employed him in that case.” Respondent contends that the fee paid to the attorney for “dissolving the temporary injunction” and “to resist the perpetual injunction” is not by the evidence apportioned between these two services, and that the jury could not determine what portion of the one hundred dollars was paid for dissolution of the injunction. (Campbell v. Metcalf, 1 Mont. 378" court="Mont." date_filed="1871-08-15" href="https://app.midpage.ai/document/campbell-v-metcalf-6637163?utm_source=webapp" opinion_id="6637163">1 Mont. 378.) But in that case the fees paid to the attorneys were in an action brought to recover possession of a mining claim. In that action an injunction was procured. The fees were paid to the attorneys in a gross sum for their services in determining the title to the property, and in procuring a dissolution of the temporary injunction. It appears in the evidence that there were these two separate and distinct services. It did not appear what portion of the fees were paid for dissolving the injunction, and what portion for determining the title to the property. The court said: “As there was no evidence to show how much money had been paid to procure the dissolution of this injunction, it was improper for the court to give any instruction which would lead the jury to consider the matter.”

But in the case at bar the right to an injunction was the only cause of action set up or litigated, and no services could have been rendered for any other purpose. Upon the trial the temporary injunction was dissolved, and a perpetual injunction denied, at one stroke, and by one service of the attorney. The damages caused the plaintiff herein were caused by the action of McManus v. Creek, and the issuance of the temporary injunction on the complaint therein. The defendant employed an attorney to resist that injunction. Instead of attacking the temporary injunction, which was in force, by a distinct motion for that purpose, the attorney dissolved it by another sort of attack. He assaulted the very foundation of the injunction— that is, the action in which it was granted — and demolished the whole structure by one effort. These facts render applicable the case of Miles v. Edwards, 6 Mont. 180" court="Mont." date_filed="1886-01-15" href="https://app.midpage.ai/document/miles-v-edwards-6637643?utm_source=webapp" opinion_id="6637643">6 Mont. 180, in which case, as in the case at bar, the only cause of action was the injunction. Therefore, Miles v. Edwards and the case now before us are distinguishable, as above noted, from Campbell v. Metcalf, 1 Mont. 378" court="Mont." date_filed="1871-08-15" href="https://app.midpage.ai/document/campbell-v-metcalf-6637163?utm_source=webapp" opinion_id="6637163">1 Mont. 378; and also from Allport v. Kelley, 2 Mont. 343, and Parker v. Pond, 5 Mont. 14, in which latter cases, as well as in Campbell v. Metcalf, 1 Mont. 378" court="Mont." date_filed="1871-08-15" href="https://app.midpage.ai/document/campbell-v-metcalf-6637163?utm_source=webapp" opinion_id="6637163">1 Mont. 378, there was a main cause of action involving the title to property, and the injunction, as remarked in Miles v. Edwards, 6 Mont. 180, was only ancillary thereto. It therefore appears herein that the fee paid the attorney was paid wholly on account of the injunction and for services as to no other cause of action than the injunction. We are therefore of opinion that there was evidence tending to prove damages occurring to plaintiff by reason of being obliged to pay attorney’s fees in the injunction action. Such damages may be recovered in an action upon the undertaking given in the injunction suit. See cases above cited in this opinion.

We will notice the error claimed in exclusion of testimony. The complaint alleges that, by the said wrongful issuance of the injunction, the plaintiff sustained damages in the loss of crop, which she says are particularly set forth, as follows: “That the loss of crop caused by this plaintiff [defendant therein] not being able to secure water through said irrigating ditch, so commenced, to properly irrigate them, by reason of her stopping work thereon, by reason of said injunction being so wrongfully issued and served, in the sum of one hundred and fifty dollars.” A demurrer by defendant was directed at this paragraph of the complaint, as follows: “That said complaint does not state facts sufficient to constitute a cause of action for the damages alleged in paragraph 8 thereof.” The district court overruled this demurrer, thereby declaring its view, and the law of the case for the time, that this paragraph of the complaint was a sufficient allegation of damages. Upon the trial, plaintiff offered evidence tending to show in detail the destruction of her crop of grain by reason of the deprivation of the water, and the value of the same, and the damages. The, court refused to admit this evidence, on the ground that the allegation of special damages in the complaint was not sufficient. It may be that the allegation of damages to the crop, as set out in the complaint, should have been more complete in allegiug the kind and quantity of the crop, and the amount of profits of which plaintiff was deprived. (Carron v. Wood, 10 Mont. 507, 508.) The infirmity in the allegation is probably not of such vital character, however, that it could have been urged by defendant after he had answered, if verdict and judgment had followed for plaintiff. But the court, on demurrer, had held' this allegation of the complaint sufficient. Then, on the trial, when it excluded plaintiff’s proffered evidence, it, in effect, held the allegation to be insufficient. Plaintiff, after the court had told her that her complaint was good, went into the trial rightfully relying upon that ruling. If the court had obtained further light upon the subject, and had concluded that its ruling upon the demurrer was wrong, it should have given plaintiff an opportunity to amend her complaint before ruling out all her evidence; for, as the trial went, the plaintiff, by relying upon the first ruling of the court as to the sufficiency of her complaint, was defeated in offering her evidence to sustain the complaint, because the court had in the mean time concluded that the complaint was insufficient. We are of the opinion that this was an error. These remarks also apply to other exclusions of evidence specified by appellant on the ground that the complaint was insufficient, whereas the court had, on demurrer, held that in these respects the complaint was sufficient. The judgment is reversed, and the case is remanded for a new trial.

Reversed.

Pemberton, C. J., and Harwood, J., concur.