77 Mo. App. 652 | Mo. Ct. App. | 1899
This is an action on an injunction bond given in a suit in the United States circuit court western district of Missouri. On a trial by the lower court without the aid of a jury, plaintiff had judgment for
In due season Elliott filed answer in the equity suit, putting in issue the allegations of fraudulent inspection, etc., and prayed that the injunction be dissolved and the bill dismissed. Thereupon the United States circuit court referred, the issues of law and fact to S. C. Douglas, Esq., with instructions to take testimony and report. Mr. Douglas, as special master in-chancery, took evidence in various parts of the country, and subsequently made a lengthy report, the purport of which was to find all issues for Elliott. To the master’s report numerous exceptions were filed by the railway company — some of which were sustained and some overruled. The United States circuit court however sustained in a large measure the complaint of the railway company and entered a decree making permanent the temporary injunction and forever enjoining Elliott from the further prosecution of his action at law. Thereupon Elliott appealed to the United States circuit court of appeals, where the cause was heard, the circuit court reversed and the said injunction suit remanded to the lower court with directions to dismiss the bill. The opinion will be found reported in 74 Fed. Rep. 767. Thereupon, in accordance with this mandate from the court of appeals, the United States circuit court entered its decree in terms dissolving the injunction formerly granted and dismissing the bill.
Elliott then, being relieved of the restraint imposed by the injunction, proceeded with his action at law, submitted his case to the United States circuit court and had judgment as prayed for in his petition. Following this the case we have here was instituted in the Cooper circuit court with the result before stated.
I. . Defendant’s objections to the judgment below may be thus stated: First, that there was no breach of the conditions of the bond in that it was not alleged or proved that any damages had been previously adjudged against the defendant, whereas the condition of the bond is that defendant “should pay all sums of money, damages and costs that shall be adjudged against it,” etc.; and, secondly, it is contended, that as the injunction bond was given in a proceeding pending in the United States court, the damages must be fixed and determined according to the rules and practice of the federal courts; that attorneys’ fees are not there considered elements of damage in suits on injunction bonds and that therefore our state courts should apply the same rule in suits on bonds given in the federal courts; and thirdly, it is insisted, that the trial court erroneously allowed as damages attorneys’ fees for defending the entire case — that the injunction was merely incidental to the principal case and no attorneys’ fees were paid to secure its dissolution.
In view then of the foregoing consideration, we have no hesitancy in deciding the first point against the defendant.
As said by the supreme court of California, in case above cited: “Bondsmen, in such a case, can not be held to have contracted with the understanding that a suit would be brought upon the bond (if at all) in a federal court, and that their liabilities would be fixed according to the view which that court might be supposed to take of the law. If for instance the defendants here and the defendants in the injunction suit were all residents of California (which was probably the fact), an action on the bond could probably not be maintained in a federal court at all.”
So, in this case at bar, it can not be said that this defendant and its sureties, when they executed the bond in the injunction suit, contracted with reference to the particular ruling of the federal courts as to allowing attorneys’ fees as damages; for, as already stated, the defendant in the injunction suit might on a dissolution thereof proceed against them in the state courts where a different rule prevails and where counsel
III. Neither have we any doubt as to the propriety of the circuit court’s action in treating the attorneys’ fees paid, or contracted for, as an element of damages in a suit on the bond in question. Plaintiff’s liability for these counsel fees were manifestly incurred in the sole effort to relieve himself of the injunction order restraining him from prosecuting his action at law for the recovery of the large sum of money owing on the tie contracts. After the institution of this action on the contract the defendant railway company presented its complaint to the equity side of the United States court alleging the fraudulent inspection and classification of the ties and prayed said court to enjoin this plaintiff from at all prosecuting his law action. On the face of the bill the court felt warranted to and did grant a temporary injunction restraining the defendant there (plaintiff here) from prosecuting the suit at law, conditioned however that the complainant make the bond in question, which it did. In that suit this plaintiff filed his answer, putting in issue the fraud alleged and prayed the court to dissolve the injunction. The case was heard first by the master in chancery, who
The record here shows that the trial court, in fixing plaintiff’s damages on the injunction bond, allowed only such counsel fees as were paid, or liability therefor incurred, in defense of the injunction proceedings, and this clearly plaintiff was entitled to. Liability for such fees were incurred in procuring a dissolution of the injunction, nothing else. Injunction was the sole remedy sought by the equity suit, and this being so, the authorities are uniform that the attorneys’ fees for the entire case are recoverable on the injunction bond; and this too whether or not the case was tried on a formal motion to dissolve or on an answer putting in issue the allegations of the bill. Brownlee v. Fenwick, 103 Mo. 420; Banking Co. v. Monarch Co., 68 Mo. App. 603, and authorities there cited.
The reasonableness of the fees and expenses paid and incurred by plaintiff in securing a dissolution of the injunction, was submitted to the trial court, under proper and abundant evidence, and its finding thereon is conclusive on us.
The judges all concurring the judgment will be affirmed.