Wisconsin Marine & Fire Insurance Co. Bank v. Durner

114 Wis. 369 | Wis. | 1902

Cassoday, Ó. J.

The terms of the undertaking in ques>tion are, in, substance, the same as prescribed by the statute, which declares “that the plaintiff will pay to the parties enjoined such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference or otherwise, as the court shall direct.” Sec. 2778, Stats. 1898. This language was taken literally from sec. 222 of the New York Code. Here the court directed that such damages should be ascertained by such reference. This is in accordance with the established practice in this state. Thus, it has been repeatedly held that, “where a preliminary injunction was improperly granted, the party enjoined, after a judgment on the merits in his favor, may have a reference to assess his damages sustained by reason of such injunction.” Parish v. Reeve, 63 Wis. 315, 322, 323, 23 N. W. 568; Kane v. Casgrain, 69 Wis. 430, 34 N. W. 241; Avery v. Ryan, 74 Wis. 591, 43 N. W. 317; Independent Order of Foresters v. United Order of Foresters, 94 Wis. 241, 242, 68 N. W. 1011. In establishing such practice, this court simply followed the rulings of the New York courts under their statute, from which ours was borrowed. Among the cases in that state in support of that practice are Methodist Churches v. Barker, 18 N. Y. 463; Jordon v. Valkenning, 72 N. Y. 300; Pacific M. S. Co. v. Toel, 85 N. Y. 646. The order of reference was not made until some time after the trial court had finally decided that the plaintiff was not entitled to the injunction, and had dismissed the action. The referee only allowed damages for procuring the dissolution of the injunction, and the order confirming the same is correspondingly-limited.

1. It is claimed that the order is not appealable. In view of the language of the statute quoted, and the fact that the court directed the reference after the action had been dismissed, the order comes directly within the language of the statute, which authorizes an appeal to this court from “a final order affecting a substantial right made in special proceedings.” Subd. 2, sec. 3069, Stats. 1898; Rose v. Post, 56 N. Y. 603 ; Newton v. Russell, 87 N. Y, 532. We must hold that the order is appealable.

2. The plaintiff contends that the trial court improperly allowed counsel fees to be recovered as damages. In the case from New York court of appeals, just cited, as here:

“The referee allowed counsel fees for services rendered on the motion to dissolve the injunction, and also^ on the reference. These were the items questioned. Held, that the law upon this question has been too long and well settled to admit of doubt as to the propriety of the allowance.” Rose v. Post, 56 N. Y. 603.

This was simply following the rule which had long been maintained in the courts of that state. Edwards v. Bodine, 11 Paige, 223; Aldrich v. Reynolds, 1 Barb. Ch. 613; Corcoran v. Judson, 24 N. Y. 106; Andrews v. Glenville W. Co. 50 N. Y. 282; Newton v. Russell, 87 N. Y. 531. Such rule seems to he regarded as having the support of the great weight of authority, even in states holding otherwise. Stringfield v. Hirsch, 94 Tenn. 425, 430, 29 S. W. 609, citing High, Inj. § 1685. Counsel for the plaintiff concede that a number of states, and perhaps most of the states, as claimed by counsel for the defendants, have followed the rule thus long ago established in New York; but they contend that “the safer and better rule, and more consistent with the policy of the law of this state,” is that which is maintained in the federal courts, where such counsel fees are not allowed,—citing Arcambel v. Wiseman, 3 Dall. 306; Oelrichs v. Spain, 15 Wall. 211. See, also, Tullock v. Mulvane, 184 U. S. 497, 22 Sup. Ct. 372; Missouri, K. & T. R. Co. v. Elliott, 22 Sup. Ct. 446, 450. It is true, as stated by counsel for the plaintiff, that the first of these cases was followed in Gear v. Shaw, 1 Pin. 608, 615. But that decision was made in 1846, by the territorial court, which, of course, was bound to follow the supreme court of the United States upon the question. Besides, that decision was made long before the adoption of the statute from New York, above quoted. So far as this court has spoken upon the construction to be given to that statute, it has been in harmony with the New York adjudications. We feel constrained to follow the well-established rule in New York from which we borrowed the statute under which the question arises.

By the Court. — The order of the circuit court is affirmed.