Aiken v. Leathers

• Decision Date: 01 January 1888
• Docket Number: 10,001
• Citation: 3 So. 357,40 La.Ann. 23
• Court: Louisiana Supreme Court
• Parties: CATHARINE M. AIKEN ET AL. v. THOMAS P. LEATHERS ET AL

3 So. 357

40 La.Ann. 23

CATHARINE M. AIKEN ET AL. v. THOMAS P. LEATHERS ET AL

No. 10,001

Supreme Court of Louisiana

January 1, 1888

APPEAL from the Civil District Court, for the Parish of Orleans. Houston, J.

Thomas L. Bayne, for Plaintiffs and Appellants.

Chas S. Rice and Howe & Prentiss, for Defendants and Appellants.

OPINION

POCHE J.

This is a suit for damages on a bond furnished by the defendants as the condition of a restraining order in a suit in chancery instituted by Thomas P. Leathers in the United States Circuit Court for the Eastern District of Louisiana, against Joseph A. Aiken.

The object of the suit was to have cancelled and annulled a wharf lease previously entered into between the city of New Orleans and Joseph A. Aiken. In addition to the principal demand, the complainant had prayed for an injunction pendente lite, and for a restraining order to prevent the wharf lessee from collecting dues from him, until the hearing of his prayer for injunction. The restraining order was issued on the 4th of August, and the rule for injunction pendente lite, was fixed for hearing on the 7th of November of the same year, 1881, and the amount of the bond for the restraining order was $ 5000.

On hearing, at the end of December following, the injunction prayed for was denied, and the restraining order was dissolved; the suit terminated shortly thereafter.

The claim in the present suit is for counsel fees in the sum of $ 5000 and for other costs alleged to be incidental to the proceedings for the dissolution of the restraining order amounting to $ 410. The judgment of the district court allowed plaintiffs $ 500 for attorneys' fees incurred by reason of the restricting order; $ 168 as the cost of photographic views of the wharves and $ 46 40 for affidavits taken for use in connection with the restraining order making a total of $ 714 40, and both parties have appealed.

The principal contention of the defendants is that no counsel fees can be recovered in an action on an injunction bond furnished under the order and jurisdiction of a Federal Court, in an equity proceeding. This point had been previously presented by way of a peremptory exception of no cause of action pleaded in limine in this case, and it was considered by this court in the opinion reported in the 37th Ann. p. 482.

In that opinion it was held in emphatic and unmistakable language that the exception was not good, and that the action for counsel fees could be maintained on the bond now in suit.

At the urgent instance of defendants' able counsel we have carefully reviewed our previous opinion, and have gone over the whole ground of discussion submitted by counsel, including a serious consideration of the opinion of the Supreme Court of the United States in the case of Oelricks vs. Spain, 15 Wallace p. 211.

In that case it appears that the injunction was the primary, exclusive and ultimate object of the entire litigation. Its object was to restrain the custodian or trustee of a large fund from paying over and distributing the same to the parties for whom he held the trust, and to enjoin the parties aforesaid "from asking for or receiving said fund."

In keeping with the order of the court, the bond was conditioned that the plaintiff in injunction "shall prosecute the writ of injunction to effect and pay as well the costs, damages and charges that shall occur in said circuit court * * * as all costs, damages and charges that shall be occasioned by said writ of injunction," etc., etc.

After the dissolution of the injunction, a bill was brought in chancery by the obligees of the bond to recover damages in the shape of interests and counsel fees.

In disposing of the contention involving the allowance of counsel fees, the court, considering that the entire litigation consisted of the injunction, assimilated the demand to one made to recover counsel fees from the party cast in an ordinary action, and not on a bond.

The court said: "It is the settled rule that counsel fees cannot be included in the damages to be recovered from the infringement of a patent. They cannot be allowed to the gaining side in admiralty as incident to the judgment beyond the costs and fees allowed by the statute."

In concluding, the court added: "In debt, covenant and assumpsit damages are recovered, but counsel fees are never included. So in equity cases, where there is no injunction bond, only taxable costs are allowed to the complainants. The same rule is applied to the defendant, however unjust the litigation on the other side. * * * The parties in this respect are upon a footing of equality. There is no fixed standard by which the honorarium can be measured. Some counsel demand much more than others; some clients are willing to pay more than others; more counsel may be employed than are necessary. When both client and counsel know that the fees are to be paid by the other party there is danger of abuse. A reference to a master or an issue to a jury, might be necessary to ascertain the proper amount, and this grafted litigation might possibly be more animated and protracted than in the original cause."

As all the considerations which led that exalted tribunal to a denial of counsel fees as an element of damages, refer to a demand assimilated to a claim for damages in an injunction suit proper, and to such a demand in chancery, we feel justified to conclude that the court did not intend to exclude such a demand in a suit at law, much less in an action filed in one of our State courts, in which there is no chancery, as contradistinguished from, a jurisdiction of common law, or in a case in which a preliminary restraining order had been granted merely as ancillary to a principal demand for the cancellation of an important and valuable contract. These views are substantially confirmed by the reasoning used, and by the conclusions reached by the Supreme Court in the cases of Meyers vs. Block, Meyers vs. Levy reported in 120 U.S. Rep. p. 206, which went up from this...