58 Ala. 68 | Ala. | 1877
(after stating facts as above). — -In the absence of any statutory provision on the subject, the defendant in a civil suit has no recourse against the plaintiff,’ for the counsel and attorney’s fees which he has been obliged to ■ pay for his defense against the same, however groundless or causeless the suit may have been. In those cases, therefore, in which a party suing, instead of relying on the usual process of the court, requires for the protection of his supposed rights or interests, process of an extraordinary character,— and which he will be allowed to obtain only upon executing bond with security to pay all damages his adversary may thereby sustain, — -the extent of the liability is to be ascertained by reference to the act, or the condition of the bond.
If the action be detinue, and the property in question is to be taken from the defendant by the sheriff, the bond to be given by the plaintiff provides that if he “fail in the suit, he will pay the defendant all such costs and damages as he may sustain by the wrongful corfiplainV’ — Code of 1876, §2942 (2593). This, of course, makes the liability extend to all the reasonable fees the defendant must pay for the defense of the suit. Besides, the extraordinary process in this action, under which the property in controversy was seized, and is held from the free use and disposition of the defendant, is not dissolved or vacated, until the controversy is terminated in his favor. Hence, it is properly held that lie may recover as damages, all the reasonable attorney’s fees he is obliged to pay for his defense to the end.
The same is true in respect to an action commenced by a writ of attachment. As the statute provides that “ the defendant must not deny or put in issue, the cause for which the attachment issued,” — § 3317 (2993), — the attachment writ, ordinarily, continues in force until the termination of the suit in favor of defendant; and he is entitled to all the expense he is reasonably put to in defending the action to its conclusion.
But a suit in chancery is not instituted by a writ of injunction' — although such a writ may accompany the subpoena or summons, or be issued at any time after the filing of the bill. It is á collateral process only. A motion to dissolve it may be made at any time, and is usually made, often successfully, soon after the writ is obtained. After the dissolution of the
The argument that because the original suit in chancery brought by defendant Bichard, against appellant, prayed cancellation of a mortgage executed by the former, and that appellant be perpetually enjoined from selling the mortgaged property — therefore, the suit was a continual effort to reinstate the injunction and must be defended as such — is more ingenious than sound. A writ of injunction sued out before and in anticipation of a decree upon the merits, is as different from a perpetual injunction awarded after or by such a decree, as a writ of attachment is different from a writ of execution, or as judgment is from mesne process.
The precise question has not heretofore been presented for adjudication in this court. It has been decided that attorney’s fees for services rendered in defense of injunction suits, were recoverable as damages under the injunction bond — as certainly they may be; but we find no case in which this court has held that fees for services' rendered in such a suit after the injunction was vacated, and not in reference to, or caused by the injunction, could be recovered as damages produced by it. The sureties to the bond are entitled to stand upon its terms; and these terms are not to be extended by implication to increase their liability.
Let the judgment of the Circuit Court be affirmed.
