134 Ala. 302 | Ala. | 1901
Lead Opinion
This is a suit on an injunction, bond after dissolution of the injunction, to i: eco ver damages resulting from the suing out of the writ. The damages recoverable for breach of an injunction bond must be such as are the natural and proximate result of the issuance of the writ. That attorney’s fees incurred in procuring the dissolution of the injunction are such damages, is not now to be questioned. The measure of such damage is the fair and reasonable value of the services rendered in procuring the dissolution of the injunction, arid this without reference to' the ratio the value of such services might bear to the value of services rendered throughout the entire case in which the injunction is obtained, but not to' exceed what the plaintiff has contracted to pay in case the compensation has been agreed on and fixed between the plaintiff and his attorney. The price, however, fixed by contract between the. plaintiff and attorney, is not the measure of defendant’s liability, since the plaintiff and attorney cannot by their contract place a, liability on the defendant beyond1 and in excess of what would be fair and reasonable co-mpane sation for the services actually rendered. In the injunction suit an appeal was taken by the defendants from the decree of the chancellor dissolving the injunction, and it is now contended by 'appellants here, that there can be no recovery in a suit on the injunction bond for attorney’s fees incurred by the plaintiffs on such appeal. The purpose of the appeal was to review and reverse the decree dissolving the injunction, and the reversal of the decree would necessarily reinstate the in-
A preliminary injunction, commonly spoken of as a temporary injunction, is granted pending a hearing on the merits, and only upon the complainant’s entering into bond with surety conditioned and payable as required by law. The statute prescribes, the condition, and that condition is, “to pay all damages and costs which any person'may sustain by the suing out of such injunction, if the same is dissolved.” — Code, § 788. The writ is obtained upon an ex parte hearing, and the bond is required as a protection against the abuse of this extraordinary process, amid to* prevent oppression by its use. It is different from a permanent injunction in that it is preliminary to a hearing on the merits and bv no means dependent on such hearing. A permanent injunction may be had on final hearing on the merits without the requirement of a bond; a preliminary injunction cannot. The bond is the contract of the* party executing it, the statute prescribes its terms and conditions, and the right; of action arises immediately upon the breach of its condition. The promise is to* pay all
The evidence in the case supported the averments of the complaint, and that, tom, as shown by the bill of exceptions without conflict. The fact that one of the witnesses whoi testified in behalf of the plaintiffs as to the value of the legal services rendered in procuring the dissolution of the injunction, based his opinion in part on what had been told him by one of_ the attorneys of the plaintiffs in the injunction suit as to» the amount of service performed, raised up no. conflict in the evidence.
Charge 3 requested by the defendant assumes that the opinions of witnesses were based on what whas told them by Messrs. Holloway and other persons, when the hill of exceptions shows that the opinion of only one witness, as to the value of the service rendered, was based in part on what Mr. Holloway told the witness, and only Mr. Holloway and not other persons. The charge in'this respect was abstract, and for that rea'son, if no other, ivas properly refused.
Charge 4 requires the jury to return a verdict for the defendant, if Hiere be an element of uncertainty in the evidence which they cannot solve, notwithstanding the jury might otherwise be satisfied from the evidence of the plaintiff’s, right to recover. The charge is also faulty in that it requires the plaintiffs “to show to the jury by competent evidence the reasonable amount of the charges,” etc., when there was incompetent evidence in the case, without objection from the defendant, which tended to show such reasonable amount of the charges, etc.
What wre have already said in the foregoing opinion upon the questions involved, disposes of the remaining charges requested by the defendant, and wdiich were refused by the court.
We, find no error in the record, and the judgment is affirmed.
Dissenting Opinion
dissenting. — The point of my dissent goes to the proposition laid down in the opinion that an action may be maintained upon an injunction bond immediately upon the rendition of an interlocutory decree dissolving it, notwithstanding the bill may be retained and upon final hearing the injunction reinstated, Just how this conclusion is to be reconciled with the proposition decided that attorney’s fees incurred1 in resisting the effort to reinstate the injunction by appeal to this
In Bolling v. Tate, it is said: “Injunctions restrain action, and the maintenance or breach of toe bond depends on toe success or failure of toe suit or litigation, in aid of which it is obtained. If toe injunction is made perpetual, the defendant has sustained no legal damages.”
In Jackson v. Millspaugh, the point presented to this court for decision Avas, Avhether counsel fees incurred by Millspaugh and his associates (the parties enjoined) in resisting a reinstatement of the injunction by toe trial court, which had been dissolved upon toe denials in their answers, were recoverable damages upon the injunction bond. Speaking to this point for toe court, Stone, O. J., said: “The necessity for getting rid of the temporary injunction did not end the trouble. If dissolved on motion, and afterwards reinstated on proof, this Avould have left Millspaugh and his associates equally AAdthout right to recover, to the extent relief should be obtained under toe bill. So, the expense toe injunction imposed on them was not limited to getting relief from the temporary injunction. It extended farther and embraced all toe outlay that Avould become necessary to prevent a reinstatement of the injunction.”
The other case cited of Cooper v. Hames, is silent on this point. Thus we see these quotations taken from toe cases relied upon as authority for allowing a recovery of counsel fees for1 services rendered1 in this court
Mr. Spelling in his work on Extraordinary Belief, pointing out the condition of the bond “to pay defendant all damages lie may sustain by the issuing of the injunction!,” says (§ 957) : “As a general and practically universal rule, an action cannot be maintained on an injunction bond until after the final determina,tion of the suit, in which the bond was given.” He is fully sustained by numerous decisions which are cited by him in a note. It will be observed that the condition of the bond of which he is speaking is substantially the same as the one here sued on.
The manifest purpose of requiring the bond is to’ indemnify the person enjoined against loss or damage, by reason of the suing out of the writ of injunction. If it is rightly sued out, that is, if the cause exists which