25 Iowa 48 | Iowa | 1868
One of the plaintiffs, as a witness on the stand, was asked “ what attorney’s fees they paid for legal services
It was held in Behrens v. McKenzie (23 Iowa, 333), that a reasonable compensation for legal services, in procuring a release of the injunction, might be recovered as damages in an action on the bond; but that this would not allow attorneys’ fees for services in defending the entire action, but alone for procuring the dissolution of the writ or releasing the property from its operation. And this is as far as, we think, the rule should go. In this case the prayer for the injunction was merely auxiliary or incidental to the relief sought in the principal matter in controversy. The dissolution of the injunction would not dispose of the case, for plaintiffs therein had equities which they could enforce, if successful, whatever the fate of their injunction. If they had commenced their action without asking an injunction, as they might, and had failed, there can be no pretense that defendants (the present plaintiffs) could have recovered compensation or damages for counsel fees in defending that action. “Every defendant against whom an action is brought, experiences some injury or inconvenience beyond what the costs will compensate him ” (Broom’s Max. 95); and yet, in the absence of fraud, malice or the like, there must be what is termed a division of the loss; and while the successful party recovers his costs, he cannot recover for what is known as a loss indirect in its nature, and in which would be included compensation to his counsel. Sedgwick on Measure of Damages, 38, 95.
Plaintiffs then further offered to show that said drafts and bonds were received in part for said $60,000 of bonds sold for McK., N. and H., in the following manner: Plaintiffs held $92,000, railroad bonds of a certain issue; McK., N. and II., $60,000 of a different issue; that plaintiffs sold all said bonds, amounting to $152,000 at one time, for $30,000 of drafts on New York, due TO, 100
The very.basis of plaintiff’s defense to the injunction suit was, that the drafts and collateral bonds held by them were not received for the $60,000 belonging to the petitioners therein, but that their bonds were sold for $5,000, which they had received. On the other hand, plaintiffs, in that proceeding, claimed that they were entitled to $7,000 more and to a certain amount of the collaterals held by the Langworthys to secure the same. On the hearing the chancellor found that plaintiffs in that action had been paid all that they were entitled to, and that they, therefore, had no interest in either the bonds or drafts still held by defendants. By their action, however, they claimed such interest, and procured the injunction in view of defendants’ insolvency for the purpose of restraining the sale or negotiation of such securities. And to hold, therefore, that, in this proceed
To say that there were no bonds upon which the writ could operate — because the court found in dismissing the bills that plaintiffs therein had no right to them, begs the whole question. Bor the logic of it is, that a plaintiff to an injunction proceeding, if unsuccessful, when sued upon his bond can say, “I was wrong — you (defendant) was right, and, this having been judicially
It legitimately follows from the foregoing views, that the testimony afterward offered, tending to show how the bonds were negotiated — the actual transaction •— was competent (whether necessary to a recovery on the bond we do not inquire). It is true that the Langworthys might, pending the injunction, have known full well that the parties assigning them had been paid all they were entitled to, and this they may have stated, and did state, in their answer in that action, and yet they would have no right to disregard the command of the writ. Their duty was to yield obedience to the order of the court, and only at their peril could they have proceeded to dispose of or negotiate the bonds. Whatever their opinions or convictions as to the equities of their adversary’s case, so long as the injunction was in force they were bound to respect it. Until set aside it was entitled to their obedience. Moat v. Holbien, 2 Edw. 188; People v. Sturtevant, 9 N. Y. 263; Higbie v. Edgarton, 3 Paige, 253. The command of the writ was very broad and compre-' hensive, and when taken in connection with the averments of the bill and the prayer, operated to restrain the present plaintiffs from selling, or in any manner disposing of, the bonds or drafts, or of any of them; but the same were to be safely kept until the further order of the court. How they could in the face of this broad and sweeping command proceed to sell the bonds by a “judicial sale,” and thus collect the drafts, without being guilty of a violation of a solemn order of an officer having full power to make it, we cannot imagine. Indeed, what is meant by the ruling in relation to a “judicial sale,” does not very clearly appear. It was doubtless based upon some fact not disclosed by the record, for it is not pretended that all the evidence is before us.
Reversed.