45 Iowa 81 | Iowa | 1876
It was held in Behrens v. McKenzie, 23 Iowa, 333, that a reasonable compensation for counsel fees, in obtaining the dissolution of an injunction, might be recovered as damages, in an action on the bond, but not for defending the entire action.. And in Langworthy v. McKelvey, 25 Iowa, 48, it was held that “ attorneys’ fees, paid for legal services in procuring the. dissolution of the injunction,” could not be recovered in an action on the bond, because it appeared the injunction was dissolved “ upon hearing and adjudication of the case, and not upon a motion to dissolve, nor otherwise than upon a defense to the suit on its merits.”
This case is not conclusive upon the question presented in the case at bar, for the reason no motion to dissolve was filed, or any effort whatever made looking to a dissolution, except, by a hearing on the merits.
In Andrews v. Glenville Woolen Co., 50 N. Y., 282, a motion was made to dissolve the injuncti.on, “which was denied, the court declining to inquire into the merits until the final hearing,” and it was held that the “expenses of the motion to dissolve, and a counsel fee on the trial,” could be recovered in an action on the bond. In this case it was clearly and distinctly shown that the court declined to inquire into the merits until the final hearing. In the case at bar an averment of that character does not so distinctly and clearly appear. ' But, in the absence of a motion for a more specific statement, we are of the opinion the petition is sufficient in this respect; otherwise it could not be said, “ the motion was not finally decided by the court, because the same evidence was taken by depositions in the main ease.”
The motion could not be determined without an inquiry into the merits, and in this respect the case is identical with Andrews v. Glenville Woolen Co., supra. It. was right and proper to file the motion to dissolve, and make preparation to'
The objection that the petition is not sufficient to warrant the introduction of any evidence is not well taken.
As the case is presented in the abstract before us, we are of the opinion the plaintiffs were entitled to recover something; it was, therefore, error to reject at least a portion of the evidence offered.
Eeversed.