113 Kan. 715 | Kan. | 1923
The opinion of the court was delivered by
In this actin C. C. Miner and his copartners sued J. S. Kirksey and D. M. Anderson to recover upon a bond given by the latter promising to pay any damages the plaintiffs might sustain by reason of the issuance of a temporary injunction which the defendants obtained in a former action. The plaintiffs prevailed, and defendants appeal.
It appears that an action had formerly been brought by Kirksey to recover damages and also enjoin interference with the collection of garbage in which he had been engaged. The city of Wichita, in which he had been making collections, passed an ordinance providing for the disposition of all garbage in retainers, to be collected exclusively by a contractor selected upon competitive bidding, and all others were forbidden to collect or remove garbage under prescribed penalties. In that action he obtained a temporary injunction against the city and certain of its officers, and also against C. C. Miner and his partners; who had been given the exclusive contract to collect and remove garbage, restraining all of the defendants from interfering with Kirksey in collecting garbage. The temporary injunction was to become effective upon the execution of the bond. It was given, and pending the litigation and before a trial on the merits a motion was made by the defendants in that case to dissolve the temporary injunction, which was sustained by the court. Upon an appeal to this court the decision was affirmed. (Kirksey v. City of Wichita, 103 Kan. 761, 175 Pac. 974). The litigation ended with the dissolution of the temporary order, as the plaintiff then abandoned his claim for damages and dismissed his action. In the present action, brought to recover counsel fees and other expenses incurred in procuring the dissolution of the preliminary injunction, the defendants contend that such fees and expenses are not recoverable, as the injunction was the principal relief sought, that the hearing on the motion was in fact a trial on the merits, and that the dissolution of the temporary order was merely incidental to the general defense of the action. Here there was no final trial of the action, and all the fees and charges for which the action was brought were incurred in getting rid of the unwarranted temporary injunction. When that
In some jurisdictions a different rule is held but the prevailing view is in accord with the one adopted by this court. (14 R. C. L. 486 and cases cited; Note in 16 L. R. A., n. s., 55).
It is urged that the attack of the defendants on the preliminary injunction was really a part of the general defense. The right to an injunction was an important feature of the litigation, but as we have seen other relief was sought. To determine whether the temporary injunction was rightfully or wrongfully obtained, consideration was necessarily given to the validity of the city ordinance, which was one of the issues involved on the merits of the case. The defendants, however, had the right to challenge the validity of the temporary injunction on the motion to dissolve it, even if a permanent injunction was a part of the relief sought, and they were en
Judgment affirmed.