47 Mo. 528 | Mo. | 1871
delivered the opinion of the court.
Upon dissolution of an injunction the statute provides that “ the damages shall be assessed,” etc. These damages are what the defendant actually suffered. In this case no damages at all have been suffered in consequence of injunction, therefore no damages should have been assessed.
It has been customary to allow counsel fees as part of the damages, but in this case it is admitted that no counsel fees were paid, and I know of no rule for ascertaining what proportion of the city attorney’s salary should be charged.
The plaintiff felt aggrieved at an assessment upon his property, and enjoined it until its legality could be tested. The case was decided against him, he pays the costs and his own counsel fees ; the city suffers no loss whatever, and should be satisfied without inflicting an arbitrary penalty upon him.
the judgment will be reversed.
