67 W. Va. 585 | W. Va. | 1910
This suit is one for the recovery of damages on an injunction bond. The damages claimed are based on counsel fees and personal expenses alleged to have been paid out and contracted in securing a dissolution of the injunction in the case of Taylor v. County Court, 57 W. Va. 165. From' a judgment on the injunction bond, by the verdict of a jury, based wholly on counsel fees and expenses relating to that case, the principal and surety come with this writ of error.
It is settled law in this jurisdiction that counsel.fees and personal expenses paid out in procuring the dissolution of an injunction are recoverable as damages in an action on the injunction bond. State v. Medford, 34 W. Va. 633; State v. Corvin, 51 W. Va. 19. Whatever may be said against the doctrine that such charges'may be recovered as damages on an injunction bond, this Court has approved that doctrine by the decisions in the cases cited.
The case of Taylor v. County Court was not purely an injunction case. The injunction issued therein was only ancillary to the main relief sought by the suit. The principal object of that case was to establish the illegality of contracts- made by the county court. The bill shows it to have been a suit to vacate those contracts. It struck directly at the invalidity. At any rate, the bill prayed for more relief than a mere injunction. It asked that the contracts be declared void. The injunction feature could have been wholly disregarded and a complete case would have remained. So it could not be called a pure injunction case. The bill made a case without injunction. The injunction prayed for and temporarily awarded was indeed ancillary to the main relief sought — the establishment of the invalidity of the contracts. The injunction was merely an ancillary feature of the case, the purpose of which was to effectuate more fully the main relief. The purpose of that injunction was to hold up payments under the contracts until it could be shown and decreed that those contracts were void. A decree declaring the contracts void would operate practically to end the necessity for the injunction. Thus we see that it was only incidental to the main purposes of the suit.
Though the injunction awarded in the case of Taylor v. County Court was only incidental to the principal issues therein, no distinction has been made in this action on the bond between the expenditures in relation to a dissolution of the injunction and those in relation to the general defense of the suit. Neither the declaration nor the'proof introduced under it makes any distinction in this regard. As we have seen, it was incumbent on Tully, the relator plaintiff in this action, since the injunction was incidental to other issues, to show that the fees and expenses were paid out solely for the purpose of procuring -a dissolution of the injunction as distinguished from expenditures for the hearing of the principal issues. Tully did not
The judgment is erroneous. It will be reversed, and the verdict set aside as contrary to law and the evidence. The demurrer to the declaration will be sustained, with leave to amend if the plaintiff is advised so to do.
Reversed and Remanded.