56 S.W.2d 962 | Ky. Ct. App. | 1933
Affirming. *181
There is no dispute as to either the law or the facts in this case. The contention is as to the application of the one to the other. The case is a sequel to Johnson v. Holt's Administrator (Johnson v. Sullivan),
Everybody agrees that the law is as succinctly stated in note to section 279 of the Civil Code, as follows:
*182"Where the injunction is merely in aid of the relief sought, or is relied on to secure the relief when obtained or to prevent the commission of an act that would result in injury before termination of action, attorney fees may be recovered. Strong v. Duff,
228 Ky. 615 ,15 S.W.2d 517 (70 A.L.R. 56), but where the injunction is the relief sought, and in fact gives the relief if sustained, attorney fees can not be recovered. New Nat. T. P. Co. v. Dulaney,86 Ky. 516 , 9 Ky. Law Rep. 697, 6 S.W. 590; Bennett v. Lambert,100 Ky. 737 , 18 Ky. Law Rep. 1057, 39 S.W. 419; Williams v. Allen, 21 Ky. Law Rep. 1191, 54 S.W. 720; Tyler v. Hamilton,108 Ky. 120 , 21 Ky. Law Rep. 1516, 55 S.W. 920; Green v. Quisenberry, 118 S.W. 361,133 Ky. 561 ; Bartram v. Ohio B. S. R. Co.,141 Ky. 100 ,132 S.W. 188 ; Burley Tobacco Growers' Co-operative Ass'n v. Pennebaker Home for Girls,221 Ky. 718 ,299 S.W. 734 ; Avondale H. Co. v. Proctor,224 Ky. 188 , 5 S.W.2d 1054."
The argument is made by the appellant that the injunction suit was ancillary to the main cause of action, that is, the suit for damages, in which there was pending a motion to set aside the judgment; that the injunction suit was for the purpose of tying the hands of the defendant and the sheriff while undertaking to have the judgment declared void.
We cannot go quite so far in the construction to be given the law relating to the recovery of damages on an injunction bond. This was an independent suit, having one purpose only; and that was to stop the enforcement of the execution. To ascertain what remedy is desired of the court in a pleading, it is necessary to examine the prayer of the pleader. It defines specifically the legal right claimed and that by which the court will be guided in granting or refusing the relief, for the court cannot voluntarily grant or thrust upon the petitioner something he may not desire. The prayer also serves the additional purpose of informing the defendant what is demanded of him and what particular remedy is asked. Cumberland Telephone Telegraph Co. v. City of Hickman,
The injunction was not merely in aid of the relief sought in the suit in which it issued. It was the sole relief asked, and that was denied upon final hearing. No recovery on the bond, as is stated above, is allowed for attorney's fees or extraordinary costs when the injunction is the end to be achieved in the case. The reasons for the rule have been repeatedly given. See Elkhorn Coal Co. v. Justice,
If the suit should be regarded as one to stay proceedings on the original judgment, the terms of section 295 of the Civil Code of Practice would apply, and they provide for a summary assessment of damages. But in such a proceeding, as is held in Stearns Coal Lumber Co. v. Tuggle,
The trial court properly disallowed a recovery. Hence the judgment is affirmed.