9 Wash. 187 | Wash. | 1894
Lead Opinion
The opinion of the court was delivered by
— This is an action for damages upon an injunction bond. The principal point in the case, and the one upon which the non-suit was granted, grew out of the fact that appellant, in attempting to show the termination of the injunction, offered in evidence a judgment, which the court held not to be a final judgment in the cause, and therefore not the proper basis for a suit upon the injunction bond. The complaint in this case alleged that at a certain time the plaintiff was the owner and in possession of a certain mining claim, and was prosecuting mining work thereon, whereupon the principal defendant in this action commenced a suit against him to recover possession of the mining claim, and procured a temporary injunction in said action restraining and enjoining the plaintiff from working the mining claim, or in any manner interfering with it. The record in the former case was introduced, by which it appeared that the complaint alleged that the defendant had attempted to relocate and appropriate the mining claim while it was still a lawful mining claim under a location and appropriation made by the plaintiff, or his grantor, and while the defendant was an employe of, or person holding a fiduciary relation connected with the mine under, the plaintiff. It was not clear from the complaint whether the pleader expected to recover possession of the claim under that suit or not, although it was prayed that defendant be declared the trustee of the plaintiff, and that
So far as concerns the objection which the respondents here make to the introduction of papers in the former case, on the ground that a suit for possession is pleaded, whereas an action in equity is proved, it is not well taken, as it is immaterial what kind of an action had been commenced if in fact an injunction was procured in connection with it.
An order was made by the court referring the former case to a commissioner to take the testimony, and report findings of fact and conclusions of law. After the commissioner had performed his work, and made his report, in which he found all the issues in favor of the defendant, and recommended that he have a decree establishing in him the right of possession of the mining claim, that he go hence with his costs, and that the restraining order issued against him should be dissolved, came the judgment which is in dispute, which recites that the cause came on to be heard upon the exceptions of the plaintiff to the report of the referee, and that after argument on both sides, the court being fully advised, “ordered, adjudged and decreed that the said report be affirmed excepting as to the last conclusion of law therein, which shall be changed so as to read ‘ that defendant is entitled to a dissolution of the restraining order heretofore issued against him herein, and that he go hence with costs. ’ Wherefore by reason of the law and the premises it is ordered, adjudged and decreed that the restraining order heretofore issued in this cause against defendant be and the same is hereby dissolved, and that defendant have and recover of plaintiff his costs herein, amounting to the sum of-dollars. ’5
One of the points upon which it is urged the court erred against appellant was in connection with his attempt to prove payment of attorney’s fees. The commonly accepted rule is that reasonable compensation paid as counsel fees, paid in procuring the dissolution of an injunction, may be recovered in an action on a bond. 2 High, Injunctions (3d ed.), § 1685.
But counsel fees thus allowable must be those connected
Inasmuch as no motion for the dissolution of the injunction appears to have been made in this case, but it was allowed to stand until the action was tried upon its merits, and simply failed because of the decision upon the merits, under the foregoing authorities no attorney’s fees could be recovered.
The complaint alleged that at the time the injunction was served plaintiff had contracted to sell his mining claim for fifteen thousand dollars, and that by reason of the injunction the intending purchaser refused to complete the contract, and subsequently the claim was sold for thirteen thousand dollars, and damages on this ground were alleged at two thousand dollars. Such damages could not be recovered. There is no allegation "and no proof that the mining claim was less valuable after the injunction, or because of it, than it was before. If, after the injunction was dissolved, he saw fit to sell it for less than the former contract price, that was a matter entirely within his own control.
Respondents insist that a demurrer which they claimed to have filed should be considered in determining the disposition of this case. No demurrer is found in the record, but Ave shall consider the principal point which is urged against the complaint notwithstanding. It is urged that the court ought not to have permitted the plaintiff to substantiate his allegations of OAvnership of the mining claim by proof of location and possession, but should have required proof of ownership in fee by patent from the United States. The allegations of OAvnership were in refer
There remain in the case some allegations of damage connected with the interference with plaintiff’s mining work, and his losses by reason of having to support a number of men in idleness during the period covered by the inj unction. But it would be improper for us at this time to pass upon questions raised in that connection.
Judgment reversed, and cause remanded for a new trial.
Dunbar, C. J., and Scott and Anders, JJ., concur.
Dissenting Opinion
(dissenting). — As I read the complaint of the plaintiff, there was no allegation contained therein that there had been any final judgment rendered in the case in which the injunction bond was given. Construing the allegation in regard to the breach of the condition of the bond as favorably to the pleader as the language will warrant, it amounts to no more than that the injunction had been dissolved, and in no wise sets forth any facts from which it could be gathered that a final judgment in the case had been rendered. For this reason the proof offered in relation to the final judgment was unsupported by the pleadings, and should have been excluded.
I am also of the opinion that a general allegation of ownership is not sustained by proof of a right to occupy under the mining laws of the United States.
For these reasons I am compelled to dissent from the conclusion arrived at by the majority of the court.