146 F. 467 | 9th Cir. | 1906
(after making.the foregoing statement, delivered the opinion of the court).
Did the court err in holding that attorney’s fees were an element of damage to be considered by the jury in a case of this character? The statute of Alaska provides: “Sec. 384. An injunction may be allowed, by the court or judge thereof at any time after the commencement of the action and before judgment. Before allowing the same the court or judge shall require of the plaintiff an undertaking, with one or more sureties, to the effect that he will pay all costs and disbursements that may be decreed to the defendant, and such damages, not exceeding an amount therein specified, as he may sustain by reason of the injunction if the same be wrongful or without sufficient cause.” Act June 6, 1900, c. 786, 31 Stat. 397.
' It will be observed that'it is not provided in this statute that attorney’s fees incurred by the defendant in procuring the dissolution of the injunction should be an element of damage recoverable in a suit upon the bond. In the absence of such a provision the question arises whether, under the general law and the consideration of sound public
An examination of the authorities will show that the state courts under similar statutes, or upon similar conditions of the injunction bond, have almost universally held that attorney’s fees, under certain limitations, are proper elements of damage. There are some few exceptions to this rule, notably in the State of Pennsylvania.
In Sensenig v. Parry, 113 Pa. 115, 119, 5 A. 11, 12; the court said: “There was no error in disallowing the evidence of counsel fee paid by the plaintiff. It was not such a legal damage as is specified in the condition of the injunction bond, as to permit a recovery therefor.”
The United States Supreme Court has universally held that such fees cannot be allowed as damages in a suit upon the ' injunction bond. The views expressed by the state courts are sufficiently outlined and expressed in 2 High on Injunctions, §§ 1685, 1686. “A reasonable amount of compensation paid as counsel fees in procuring the dissolution of an injunction may be recovered in an action upon the bond * * * if the injunction was improperly or wrongfully sued out, the amount being limited to fees paid counsel for procuring the dissolution, and not for defending the entire case. Counsel, fees in such cases are regarded as a proper subject of consideration in estimating the damages incurred, the loss being as direct and immediate as any other. [Citing many cases.] * * * § 1686. The allowance of counsel fees as damages upon dissolving an injunction is based upon the fact that defendant has been compelled to employ aid in ridding himself of an unjust restriction, which has been placed upon him by the action of plaintiff.”
In Tullock v. Mulvane, 184 U.S. 497, 511, 22 S.Ct. 372, 46 L.Ed. 657, the case was brought before the court by writ of error to the Supreme Court of the state of Kansas. The bond was given in a suit in the Circuit Court of the United States. The Supreme Court held that the claim of immunity from liability for attorney’s fees as one of the elements of damage under the-injunction bond presented a federal question, which was incorrectly decided by the court below in holding that it was proper to award the amount of such fees in enforcing the bond; that a bond given in pursuance of a law of the United States is governed, as to its construction, not by the local law of a particular state, but by the principles of law as determined by this court, and operative throughout the courts of the United States.
Regarding the questions under review in that case, the court said: “It remains only to consider whether the attorney’s fees were properly allowed by the court below as an element of damages on the bond. That they were not, is settled.”
And then quotes at length from Oelrichs v. Spain, supra.
In the further coursp of the opinion the court held that this question was a matter of general law. It said: “It is at once conceded that the decision by a state couri of a question of local or of general law involving no federal
The judgment of the Supreme Court of Kansas was reversed. The case of Missouri, Kansas & Texas Ry. Co. v. Elliott, 184 U.S. 531, 22 S.Ct. 446, 46 L.Ed. 673, affirmed, and followed the rules announced 'and views expressed in Tullock v. Mulvane, supra.
As was said by the court in Greer v. Richards, 3 Ariz. 227, 232, 32 P. 266: “The state courts are subordinate to the Supreme Court of the United States only in cases involving federal questions, and not in those involving only local questions. The territorial courts are completely subordinate to the United States Supreme Court. It is the court of final resort, and its decisions are binding and conclusive upon us. The Supreme Court of the territory is really but an intermediate appellate court, and this is in pursuance of the theory that the governments of territories shall always be subject to the supervision of the national authority.”
Alaska is one of the territories of the United States, and its district court is the Supreme Court of the territory of Alaska. Steamer Coquitlam v. United States, 163 U.S. 346, 352, 16 S.Ct. 1117, 41 L.Ed. 184. Its judgments and decrees can only be reviewed by appeal or writ of error in the United States Circuit Court of Appeals for the Ninth Circuit, or by the Supreme Court of the United States. Our conclusion is that the court below erred in following the rule announced by the state courts, instead of being guided by the decisions of the Supreme Court of the United States. It is proper to add that in the rulings of the court in other respects, which are complained of, we find no reversible error.
The judgment of the District Court is reversed.