86 Neb. 481 | Neb. | 1910
Lead Opinion
This is an action upon an injunction bond. The bond was given by the defendant in this case in an injunction proceeding which was ancillary to an action for divorce brought by her against plaintiff herein. At the time the action for divorce was begun, plaintiff, who was then the husband of the defendant Zai-dee M. Darling, noAV Zaidee M. McBride, had advertised for sale a large amount of personal property. In her petition for divorce Mrs. Darling alleged that certain specified chattels thus advertised Avere her individual property, and that other articles were the property of defendant, and that he had withdrawn from deposit in a bank certain money received by him from the sale of property belonging to her. She prayed for a divorce, for alimony, and that the defendant be enjoined from selling any part of the personal property or disposing of the funds until the further order of the court. A temporary order of injunction was issued upon ihe giving of the bond sued upon in this action. AfterAvards it Avas agreed that the property should be sold at public auction and the proceeds held by one Goodrich subject to the order of the court. A motion was made to vacate the temporary injunction, which was sustained as to a portion of the property, and it was ordered that the proceeds of the remainder remain in the hands of Mr. Goodrich until a hearing Avas had as to the ownership. Upon the final hearing of the case the court found that the plaintiff Avas entitled to a divorce, found further that she Avas entitled to the sum of $250, the proceeds of the sale of certain hogs, alloAved her this as alimony, and dissolved the injunction in all other respects. Afterwards
The testimony shows that the plaintiff paid the sum' of $50 to his attorney as a fee for services in obtaining a dissolution of the temporary injunction as to most of the property, and for trying the respective rights of the parties to the remaining property at the final hearing. The plaintiff further testifies that, on account of the injunction tying up his money, he was unable to complete a contract for the purchase of 160 acres of land in Frontier county, and that he lost the use of the proceeds' of the sale from February 25 to August 30, 1907; that if he had obtained the land it would have been worth about $700 to him, and that the interest upon the money aside from the land transaction would be worth 10 per cent. The anticipated profits upon his proposed speculation in land cannot be taken as the measure of damages, and under the circumstances we do not feel justified in saying that the plaintiff was entitled to interest upon the proceeds of the sale. The main controversy here is as to the right to recover attorney’s fees. On the one hand, the plaintiff asserts that when injxmctive relief is granted as ancillary to the main issue in a case, and the defendant moves to dissolve the. temporary injunction and expends money for attorney’s fees in this behalf, it is recoverable in an action upon the injunction bond if he is successful, while the defendant insists that in such a case such fees are not recoverable. The defendant relies upon the cases of Cunningham v. Finch, 63 Neb. 189, Estate of Barr v. Post, 4 Neb. (Unof.) 32, and Leonard v. Capital Ins. Co., 101 Ia. 482.
Cunningham v. Finch was a case where the owners of a farm brought an action to enjoin waste. A temporary injunction was issued. A motion to dissolve this was overruled, and upon final trial judgment was rendered finding for the defendants. The defendants then sued and recov
In Barr v. Post, supra, the injunction proceedings Ávere only ancillary to the main action, and the court held, following Cunningham v. Finch, supra, and First Nat. Bank v. Hockett, 2 Neb. (Unof.) 512, that the recovery of counsel fees for the trial of a case Avill not be alloAved as an element, of damages for an injunction Avrongfully obtained if the injunction proceedings be only ancillary to the main case.
The plaintiff, in support of his contention that in such cases attorney’s fees for securing the dissolution of a temporary injunction are proper elements of damage, cites Jameson v. Bartlett, 63 Neb. 638, First Nat. Bank v. Hockett, supra, and Trester v. Pike, supra.
Trester v. Pike Avas an action in the nature of a creditor’s bill to set aside certain transfers of real estate, in Avhich an ancillary restraining order Avas issued. Upon the final hearing the action Avas dismissed, the court finding that there Avas no equity in the bill. In an action upon the injunction bond, damages Avere recovered for services of the attorney in trying the action. This was held to be error, and the court said, “The necessary and reasonable expenses for attorney’s fees expended or incurred in resisting an order of injunction wrongfully issued, or procuring the dissolution thereof, are recoverable as an element of damages. But when the right to an
The distinction between the cases cited by plaintiff and defendant is clear, and they are not inconsistent with each other. The plaintiff is entitled to recover the amount which he expended for attorney’s fees in procuring the dissolution of the temporary order of injunction, but not for trying the divorce case. The fee of $50 paid by him is shown to be a reasonable fee for the services rendered. The fact that the injunction was not dissolved as to a small portion of the property in controversy is not material. We think the district court was justified in refusing to allow any other damages.
The judgment of the district court is reversed and the cause remanded, with directions to enter a judgment for the plaintiff for the sum' of $50.
Reversed.
Dissenting Opinion
dissenting.
The defendants in their answer set ont the proceedings in the divorce case in full, and insist that the matters attempted to he litigated in this suit were adjudicated in the divorce suit. This is the entire defense relied upon. The case was tried in the court where the divorce suit was determined. The jury was waived, and the trial court found for the defendants. The majority opinion ignores the real issue.tried in the lower court, and treats the case as though it were solely a controversy over the amount of attorney’s fees that might be recovered. Some of the courts hold that in an ordinary action in equity upon dissolving an injunction the court should enforce- the payment of damages caused by the injunction. This is the rule in the federal courts. Coosaw Mining Co. v. Farmers’ Mining Co., 51 Fed. 107. It is the rule in some of the states, in the absence of a statute, and in several of the states it is made the rule by express statute. In England it is discretionary with the court. Whatever the rule may be in ordinary actions in equity, I think there can be no doubt of the correctness of the judgment of the trial court in this case.
In the original petition' for divorce, which was upon the ground of cruelty, the property owned by the husband and wife is described in full, a,nd it is alleged that the husband is attempting to dispose of property that belongs to the wife, as well as his own'property, so as to prevent the judgment of the court, in regard to the property rights of the parties, being enforced. A temporary injunction was allowed restraining the husband from disposing of the property while the action was pending. Upon the granting of this injunction the bond was given upon which this action was brought. The action was tried by the court upon a stipulation of facts from which it appears that after the injunction had been granted in the divorce suit the parties to that suit entered into a stipulation concerning the property, which included all of the property
By the final judgment the court gave to the plaintiff Zaidee Darling $250 “from money in the hands of O. 0. Goodrich”, being a portion of her personal property in lieu of alimony, so that by final decree of the court all of the property of the defendant and a considerable portion of the property claimed by the plaintiff was given to the defendant. The final decree contained these words: “That the injunction heretofore granted herein as to all the other money in the hands of 0- O. Goodrich, except the aforesaid sum of $250, is hereby dissolved, set aside and vacated.”
It seems to me that there can be no doubt that in this final distribution of the personal property it was the duty of the court to take into consideration all matters arising out of the litigation in that case in favor of one of the parties and against the other, and if the defendant was entitled to attorney’s fees for services rendered in the action, such claim must have been taken into consideration by the court in finally adjusting the rights of the parties. The district court so considered it, and rendered, in this action upon the bond, a judgment in favor of the defendants. I do not think that the majority opinion determines or considers the matter adjudicated by the district court, and I think that it follows from the foregoing considerations that the judgment of the district court in this case is correct and should be affirmed.
Concurrence in Part
concurring in part in dissent by Sedgwick, J.
I believe the judgment of the district court should be affirmed, but am not cértain that I fully agree with Judge Sedgwick in all his conclusions. I am persuaded that the stipulation of the parties placing the money realized