Thomas v. McDaneld

77 Iowa 299 | Iowa | 1889

Given, C. J.

I. It will be observed that the only damage claimed is for expenses incurred for attorney’s fees, and that the only service rendered by the attorney was in answering the petition in equity, and in defending the case on the final hearing. It is well established by repeated decisions of this court that expenses necessarily incurred for attorney’s fees in defending against an injunction may be recovered in an action on the injunction bond. Such damage, however, does not include expenses in defending against other features of the case in which the injunction was issued. In Langworthy v. McKelvey, 25 Iowa, 49, the court says: “If a case should arise where the injunction was dissolved after a hearing on the merits, and this was the only relief sought, and all there was in the casó, we are not to be understood as holding that counsel fees might not be recovered. In other words, we do not hold that such recovery is to be confined alone to cases where the injunction is dissolved on motion.”

The sole question before us is whether the services rendered in answering the petition and defending on the trial were services in defending against the injunction. This depends upon whether the case was an independent proceeding for injunction alone, or whether the injunction was a mere auxiliary to a proceeding for other relief. The relief asked was that the sale be enjoined, “and for such other and further relief as petitioner is entitled to.” Tlie allegations of the petition did not entitle the petitioner to any other relief than injunction. Strike the prayer for injunction and the allegations upon which it is asked from the petition, and there is no case left. In Langworthy v. McKelvey, supra, and in Carroll County v. Railroad Land Co., 53 Iowa, 685, the court held that the injunction was only auxiliary to the other relief asked. True, the relief asked in this case depends upon the question of title, but that does not change the fact that it is an independent proceeding for injunction only. Being for injunction only, there is nothing else in the case to defend against. Had a motion been made to dissolve this injunction, it would have involved the same investigation that was made on the trial; and, had such motion been made and sustained, the case would have been finally disposed of as provided in section 3401, Code, as there would have been nothing left to proceed, upon. The case was one for injunction alone, and what was done in the way of defense was against the injunction, and resulted in its dissolution. We hold, under the facts certified, that the plaintiff was entitled to recover his expenses for attorney’s ■ fees necessarily incurred in defending the case in equity, and that the court erred in directing the jury to find for the defendants. Reversed.