34 W. Va. 633 | W. Va. | 1891
This was an action of debt brought on the 22d day of
The facts are as follows : In the month of February, 1887, Thomas Medford and wife brought their bill of injunction in the Circuit Court of Cabell county against Joseph Levy and wife to abate and restrain a nuisance created and kept up by Levy and wife to the serious annoyance of plaintiff by defendants’ improper occupation of a certain tenement in the city of Huntington. The injunction was granted, but not to take effect until Medford gave bond with approved security, in the penalty of two hundred dollars, conditioned according to law. Accordingly Thomas Medford, with G. E. Thornburg as his surety, executed the injunction-bond, dated February 18, 1887, in the penalty of two hundred dollars conditioned, among other things, that the said Thomas Medford would pay all such costs as may be awarded against him, and also such damages as should be sustained by any person in case said injunction should be dissolved. The court below made the injunction perpetual. An appeal was taken, and this Court reversed the decree, dissolved the injunction and dismissed the bill. Then this suit was brought for damages sustained by Levy by reason of the injunction. On the trial he proved that for defending the injunction and finally obtaining its dissolution he
There can be no question that it was necessary for Levy to employ counsel and pay them a reasonable compensation in order to get rid of the injunction, to take the case to the appellate court, and have the injunction dissolved, and that such payment was the natural, direct, proximate, actual result of Medford’s injunction. He applied for the injunction, knowing that it could not and would not be granted on any other terms; hence the court made it a condition precedent that he should give a bond with good security, binding the surety to pay all such costs as might be awarded against him, and also all such damages as should be incurred or sustained in case the injunction should be dissolved ; and he gave it under his hand and seal. Therefore he bound himself by contract to pay them if such damages are covered by the bond. It can not be the taxable attorney’s fee, for that is a part of the taxable costs recovered by defendant Medford, the payment of which is expressly provided for as costs in the injunction-bond. What Levy had to pay his attorneys to get the reversal of the decree below making perpetual a wrongful injunction, and the dissolution of the injunction was the direct and proximate result of the operation of the injunction itself — as much so as a surgeon’s bill is a result of the negligence of a railroad company which makes it necessary to call one in to attend a wounded passenger.
But it is said it is not allowed to enter into the estimation of damages in any of the common-law actions or in any of the Code substitutes. The answer to this is' that if Medford had seen fit to go on with his suit and mature it for hearing without giving any bond, he would not have had any
Bntitis contended tbat as in tlie case of attachments when dissolved, so in the case of an injunction when ancillary to an original proceeding, reasonable counsel fees may be allowed as part of the damages covered by the injunction-bond. Yet it is not so covered by an injunction-bond in precisely the same language, if the injunction is the relief sought by the bill. See Turnpike Co. v. Dulaney, 86 Ky. 516 (6 S. W. Rep. 590). I am at a loss to see how precisely the same words in two contracts, each according to the same law, with the same object in view, and relating to the same general subject-matter, can have such different meanings and effect. On the contrary, High. Inj. (3d Ed.) § 1686 says as the result of the authorities:
“The allowance of counsel fees as damages upon dissolving an injunction is based upon the fact that defendant lias been compelled to employ aid in ridding himself of an unjust restriction which has been placed upon him by the action of the plaintiff*, and the true test with regard to the allowance of counsel fees as damages would seem to be that if they are necessarily incurred in procuring the dissolution of the injunction, when that is the sole relief sought by the action (the bill) they may be recovered; but if the injunction is only ancillary to the principal object of the action, and the liability for counsel fees is incurred in defending the action generally, the dissolution of the injunction being only incidental to the result, then such fees can not be recovered.”
The proposition that a reasonable amount of compensation paid as counsel fees in procuring the dissolution of a wrongful injunction may be recovered in an action on the bond as a damage “incun’ed as direct and immediate as "any other” seems to be sustained by a decided preponderance of authority. Mr. High regards it as the well-settled doctrine, notwithstanding the cases of Oclricks v. Spain, 15 Wall. 211; Oliphint v. Mansfield, 36 Ark. 191; and Sensenig v. Parry, 113 Pa. St. 115 (5 Atl. Rep. 11); and he cites some thirty cases from fifteen states in support of his position.
Hil. Inj. (2d Ed.) p. 87, § 54, lays down the same doc
It would be a waste of time, and to no useful purpose, to take up one by one the many cases cited by defendant in error. Those cited by appellant have been expressly referred to and in a general way commented on above collectively. Injunctions are liable to abuse. The bond is intended to mitigate it. Counsel fees are sometimes exorbitant, but for this the courts must apply the remedy when it is their business to grant or allow them. Although I can certainly recall no instance within my own observation, yet I think I can safely say that reasonable counsel fees have been in some of our Circuit Courts allowed as a part of the damages embraced by the iujunction-bond. Such fees must have been in truth reasonable, for they have never been complained of (perhaps too small for appellate jurisdiction) so that we have no case on the subject. But if it should be found liable to abuse and against sound policy the remedy is plain and simple — expressly except them in the injunction-bond. That they are comprehended as the law now stands, I have but'little doubt; and if comprehended, being a matter of contract, pi’escribed by the legislature, the courts have no right to exclude them on grounds of public policy, of delicacy, or of liability to abuse.
Eor the reasons given we are of opinion there is no error in the judgment complained of, and it is affirmed.
AEEIRMED.