92 P. 992 | Idaho | 1907
Some years ago the plaintiff in this action secured a judgment against the defendants in the district court of the first judicial district in and for the county of Kootenai; the defendants appealed, and the judgment was thereafter affirmed by this court. (Miller v. Donovan et al., 11 Idaho, 545, 83 Pac. 608.) The defendants, Donovan and others, thereupon commenced an action in the district court, against Miller and the sheriff of Kootenai county to restrain and enjoin the sheriff from selling certain property under execution to satisfy the judgment and to perpetually enjoin the defendant Miller from thereafter taking out any execution for the collection and satisfaction of that judgment and to declare the .judgment void and vacate the same. At the-time of filing the complaint the plaintiffs in that case, who-are defendants and appellants in the case at bar, secured the issuance of a temporary injunction restraining the sheriff from proceeding with the sale under the execution, and from collecting the judgment thereunder pending the action. Upon the issuance of the writ of injunction, the plaintiffs in that ease executed and filed an undertaking in compliance with the provisions of section 4291, Revised Statutes, for the sum of $2,500. Judgment in that case went against the plaintiffs, and in favor of the defendant Miller and the sheriff. The plaintiffs thereupon appealed the case to this court where the judgment of the lower court was affirmed (Donovan el al. v. Miller et al., 12 Idaho, 600, 88 Pac. 82, 9 L. R. A., N. S., 524). After the latter judgment became final and the original judgment was paid, Miller commenced this action on the injunction bond to recover costs and attorney’s fees-incurred by reason of the issuance of the temporary .injunction. The trial was had and júdgment entered in favor of
The only question argued is as to the attorney’s fee that was allowed by the trial court. Two objections are urged against its allowance: 1. That the fee charged and collected was a lump sum for the whole litigation, and that no specific amount was charged or collected for securing the dissolution of the injunction; and 2. That the fee allowed by the trial court was unreasonable and exorbitant. Under our statute, section 4291, no question can arise as to the allowance of attorney’s fees in an action on an injunction bond. It is there provided, among other things, that the bond must be conditioned “to the effect that the plaintiff will pay to the party enjoined such costs, damages and reasonable counsel fees, not exceeding an amount to be specified, as such party may incur or sustain by reason of the injunction, if the court finally decide that the plaintiff was not entitled thereto.” The bond in this case is in the language of the statute, and therefore clearly obligates the principals and surety to the payment of attorney’s fees. It might be well to observe here that our statute in this respect differs from all the other statutes that have been called to our attention in reference to undertakings on injunction. Here the legislature has provided in unmistakable terms for the allowance of such “reasonable attorney’s fees” as the “party may incur or sustain by reason of the injunction.” In the light of this statute, the court would, perhaps, be justified in exercising more liberality in the allowance of attorney’s fees in such cases than have the courts in those states where attorney’s fees are not specifically allowed by statute, but are allowed by the court under the general head of damages.
The only evidence introduced in this case as to the attorney’s fees was the testimony of the respective attorneys for the plaintiff and defendants in the case. Mr. McBee, who conducted the litigation throughout for his client Miller, testified that he had had different understandings from time to time with his client with reference to fees, but that he never collected any fees, except a $25 retainer, until the case of
The injunction was issued in Donovan et al. v. Miller et al., February 17, 1906, and on the 26th defendants filed a de
Spelling on Injunctions, at section 953 of volume 1 (second edition), says: “The general rule with respect to the allowance of fees of attorneys and counsel as damages is that they are allowable upon judgment, whether interlocutory or final, that complainant was not entitled to the injunction in the first place; but this rule has been reversed by statute in a few states, modified in many, and given statutory expression in others. But quite generally it is held that the fees which the defendant who has been enjoined may recover are only such as were necessary in procuring a dissolution of the injunction, and not those paid in general defense of the action where other relief than an injunction is sought.”
In the case of Greek v. McManus, 13 Mont. 152, 32 Pac. 675, Mr. Justice De Witt, in considering the extent to which attorney fees would be allowed and the services rendered on the main issue,, among other things, said: “But in the case at bar the right to an injunction was the only cause of action set up or litigated, and no services could have been rendered for any other purpose. Upon the trial the temporary injunction was dissolved, and a perpetual injunction denied, at one strike, and by one service of the attorney. The damages caused the plaintiff herein were caused by the action of Mc-Manus v. Creek, and the issuance of the temporary injunction on the complaint therein. The defendant employed an attorney to resist that injunction. Instead of attacking the temporary injunction, which was in force, by a distinct motion for that purpose, the attorney dissolved it by another sort of attack. He assaulted the very foundation of the injunction — that is, the action in which it was granted — and demolished'the whole structure by one effort.” This ease again found its way to the supreme court (Creek v. McManus, 17 Mont. 445, 43 Pac. 497), and it was held upon the facts as disclosed by the latter record that attorney fees could not be collected, but the opinion in the latter appeal in no way militates against the principle of law announced in the first decision. •
In Thomas v. McDaneld, 77 Iowa, 299, 42 N. W. 301, the supreme court of Iowa had under consideration the question of the allowance of attorney’s fees for defending in the entire action, as well as resisting a temporary injunction. There the action was purely and solely a suit for injunction, and the court said: “The sole question before us is whether the services rendered in answering the petition and defending on the trial were services in defending against the injunction. This depends upon whether the case was an independent proceeding for injunction alone, or whether the injunction was a mere auxiliary to a proceeding for other relief. The relief asked was that the sale be enjoined, ‘and for such other and further relief as petitioner is entitled to.’ The allegations of the petition did not entitle the petitioner to any other relief than injunction. Strike the prayer for injunction and the allegations, upon which it is asked from the petition, and there is no case left.....The ease was one for injunction alone, and what was done in the way of defense was against the injunction, and resulted in its dissolution. We hold, under the facts certified, that the plaintiff was entitled to re
The court of appeals of New York, in Anderson v. Glenville Woolen Co., 50 N. Y. 282, had under consideration a case where an injunction had been procured to restr an the collection of a judgment, and the services rendered by the attorney appear to have covered the whole case. In the syllabus to that case the following principle of law is announced: “Expenses properly incurred on the part of the defendant for the purpose of dissolving an injunction are legally allowable as damages, and when a motion has been made to dissolve the injunction, which was denied, not upon the merits or for irregularity, but because the court in its discretion thought it advisable to defer the inquiry into the merits until the final hearing, the expenses of the motion and also counsel fees upon the trial are proper items of damages. ’ ’ In the body of the opinion the court observed: “But for the injunction, the defendant might have collected the money before the trial, and as the only relief demanded against it by the complaint was to restrain its collection, it is not certain that the case would have been brought to trial had the collection been first accomplished.”
In Lambert v. Haskell, 80 Cal. 611, 22 Pac. 327, the court held that: “The counsel fees for which the sureties may be held are not those expended for the defense of the suit, but only those which have been expended solely or principally in procuring a dissolution of the injunction. (Newton v. Russell, 87 N. Y. 531; Bustamente v. Stewart, 55 Cal. 115.) And the evidence must show a case within the rule. ’ ’
The foregoing authorities announce the principal phases of the general trend of authority on this subject. There are, however, many exceptions to the rule, and, indeed, a great many eases where it is very difficult to determine upon what principle of law they were decided, as may be seen from the notes found in 22 Cyc. 1053-1056; also 16 Am. & Eng. Ency. of Law, 2d ed., 468-470. (See, also, 2 High on Injunctions, 4th ed., sec. 1686-1689.)
Tbe judgment must be affirmed, and it is so ordered. Costs awarded in favor of respondent.