Nimocks v. Welles

42 Kan. 39 | Kan. | 1889

Lead Opinion

Opinion by

Holt, G.:

Attorneys’ fees are recoverable in an action on the bond for services performed in allowing the dissolution of an injunction. (Underhill v. Spencer, 25 Kas. 71, and authorities there cited.) This bond is sufficient in form to make the obligors responsible for such fees. They probably could not question the mere form of the bond after obtaining a temporary injunction on the strength of having giveu it.

Was the plaintiff the real party in interest? He had at least all the rights of Gilmore, the sheriff, so far as all damages that might have accrued by reason of employing an attorney. It was found substantially, that defendant in the action of Wells v. Gilmore sustained no other damage than the attorney-fees of Judge Nimocks. Gilmore was interested in a part of the fees in the case of The State v. Julian, wherein the execution was issued. He had also an interest in the costs that might be made in Julian v. Gilmore. The plaintiff' in his own right had an-interest that the judgment against ■Julian should be paid out of Julian’s property. He could not have recovered his fees in that action as county attorney from any other source. The county of Barton, at least, would not in any event have been liable to him. There may have been others who may have been interested in the judgment against him besides the plaintiff and Gilmore; and under certain contingencies the county might have had an interest. It would have been liable for a part of the fees in the action of The State v. Julian, if they could not have been made out of the property of defendant, and to that extent the county was interested indirectly in the dissolution of the injunction.

It is found that plaintiff was county attorney when Julian was tried and convicted, but there is nothing to show that he was such officer when the action of Julian v. Gilmore was tried, except the fact that he had been county attorney some time before. The positive finding of the court that he was the attorney of Gilmore at that time, and a failure to find that he was county attorney, are sufficient to overcome the presumption that he still continued to be county attorney.

If there were others that might have been interested in the costs in the ease of The State v. Julian — witnesses for the state, the district clerk, or Barton county — there is no proof that they, or either of them, ever employed or were represented by an attorney at the trial. On the other hand, it is found that plaintiff, as the attorney for Gilmore, appeared and tried the case, and obtained the dissolution of the injunction. We presume his services were just as valuable and required as much diligence, care and ability to represent Gilmore’s interest alone, as though he had been employed by all who had directly or indirectly an interest in the result of the action. Certainly the obligors of the bond cannot now question the authority of the only attorney who appeared for Gilmore, and through whose efforts the injunction was dissolved. No other attorney-fees could have been recovered in an action on the bond, as the plaintiff, as Gilmore’s attorney, alone obtained the dissolution of the injunction. His rights were assigned to plaintiff, and he is entitled to a judgment for his fee under such assignment.

We recommend that the judgment in favor of defendant for costs be reversed, and a judgment for $40 be rendered in favor of plaintiff. ,,

By the Court: It is so ordered.

Horton, C. J., and Johnston, J., concurring.

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Concurrence Opinion

Valentine, J.:

I concur in the decision of this case only upon the theory that the plaintiff in error in this case, Nimocks, was not the county attorney of Barton county at the time when he assisted as an attorney at law in procuring the dissolution of the injunction issued to restrain the enforcement of the judgment for costs rendered in favor of the state of Kansas in the criminal case of The State of Kansas v. James E. Julian.