62 P. 618 | Cal. | 1900
An action was commenced against the plaintiffs on behalf of the Abbey Land and Improvement Company et al. to enjoin them from doing certain acts, and an order for an injunction pendente lite having been made upon condition that they execute an undertaking to the plaintiffs herein in the sum of five hundred dollars, the *397 defendants herein executed such undertaking, and a writ of injunction was issued and served upon the plaintiffs. Subsequently the defendants — plaintiffs herein — gave notice of a motion to dissolve the injunction, and on May 21, 1896, brought on the motion before the court for hearing, and after reading affidavits in support thereof the motion was submitted to the court for its decision. Two days thereafter, before any decision upon the motion, plaintiff's attorney filed a dismissal of the action. The present action is brought to recover damages sustained by reason of the injunction, the only damages claimed being those arising from the services of counsel for procuring its dissolution. Judgment was rendered by the superior court in favor of the defendants, upon the grounds found as facts by the court that the defendants did not employ any attorneys or pay any money to procure the dissolution of the injunction, and that the injunction was dissolved by reason of the dismissal of the action at the instance of the plaintiffs. A motion for a new trial was made upon the grounds that the evidence was insufficient to sustain the decision of the court, and from an order denying that motion, as well as from the judgment, the plaintiffs have appealed.
The finding of the court that the plaintiffs did not pay any money to their attorneys to procure the dissolution of the injunction is not sustained by the evidence. The only witness at the trial was the plaintiff Frahm, and he testified distinctly that he made an agreement with the attorneys to move for the dissolution of the injunction for the sum of four hundred dollars, and that he had paid that sum to them before the present action was brought. Whether the money was paid in advance of the services or not until after the action had been dismissed was immaterial. This testimony of the plaintiff was not impaired by the fact that he had previously employed the same attorneys to defend him in the suit, or that the receipts given by them did not specify the particular object for which the payment was made.
The respondents' objections to the sufficiency of the specifications in this respect are not well taken. The "particulars" *398 in which the evidence is alleged to be insufficient are specified with sufficient clearness to point out the grounds upon which the appellants rely, and to enable the respondents, as well as the court, to cause the statement to properly present such evidence as is pertinent to those grounds. A statement that the evidence "fails to show" a particular probative fact essential to the judgment is substantially the same as saying that it is "insufficient to sustain" that fact.
Neither does the evidence sustain the contention of the respondents that the money was paid to the attorneys for services rendered by them generally for defending the suit, and not for the purpose of procuring a dissolution of the injunction. Frahm testified, and there was no contradictory evidence, that it was specifically agreed, before the motion for a dissolution was made, that the attorneys should be paid four hundred dollars for their services upon that motion, and also that he paid them other moneys for the other services rendered in defending the suit.
It is further contended by the respondents that there can be no recovery upon the undertaking, for the reason that, as the plaintiffs filed a dismissal of the action before any decision had been made upon the motion to dissolve the injunction, it was therefore never decided by the court that the plaintiffs in that action were not entitled to the injunction. It was held inDowling v. Polack,
The respondents do not content that the judgment entered upon such dismissal is not as effective a determination of the action as would be a judgment rendered upon the merits after a contested trial, but they urge that the defendants in the injunction suit cannot recover counsel fees as a part of the damage sustained by reason of the injunction, unless it is shown that the injunction was dissolved by reason of the services of such counsel, and that such damages are not recoverable when an injunction falls by reason of the plaintiffs' dismissal of the action. As the voluntary dismissal of the action by the plaintiffs was an admission by them that they were unable to maintain their action, and therefore that they were not entitled to the injunction, it must follow that, by the terms of the undertaking, the defendants are entitled to recover from the sureties whatever damage they sustained "by reason of the injunction." Inasmuch as counsel fees incurred by the defendants for the purpose of securing a dissolution of the injunction are recognized as a portion of the damage covered by the undertaking, the plaintiffs cannot, by their voluntary dismissal of the action, take from the defendants their right to recover for such counsel fees after they have been once incurred, any more than could they in that manner take away their right to recover whatever other damages they might have sustained by reason of the injunction. If upon the argument of the motion for its dissolution the plaintiffs became convinced that the motion ought to be granted, they could not deprive the defendants of their right to compensation for the counsel fees incurred by them, by rushing to the clerk's office and dismissing the action before the court could make its order upon the motion. In Lanphere v. Glover,
The judgment and order are reversed.
Garoutte, J., and Van Dyke, J., concurred. *401