Barr's Estate v. Post

• Decision Date: 08 January 1903
• Citation: 93 N.W. 144,4 Neb. [Unof.] 32
• Parties: BARR'S ESTATE v. POST.
• Court: Nebraska Supreme Court

4 Neb. [Unof.] 32

93 N.W. 144

BARR'S ESTATE

v.POST.

Supreme Court of Nebraska.

Jan. 8, 1903.

Commissioners' opinion. Department No. 3. Error to district court, Lancaster county; Holmes, Judge.

“Not to be officially reported.”

Action by Martha A. Post against the estate of William Barr, deceased. Judgment for plaintiff. Defendant brings error. Reversed.W. M. Morning and G. W. Berge, for plaintiff in error.

Stewart & Munger, for defendant in error.

DUFFIE, C.

Martha A. Post recovered judgment against William Barr, now deceased, in the sum of $2,000, which was afterwards affirmed in this court. 77 N. W. 123. Barr thereafter brought a suit in equity in the district court of Lancaster county to obtain a new trial, alleging that the judgment against him was obtained by false and perjured testimony on the part of Mrs. Post, which fact he had discovered since the trial of the case. He also obtained an order restraining Mrs. Post from enforcing her judgment while said equity suit was pending, and until it was determined whether he would obtain a new trial. The restraining order remained in force until the final trial of the case upon its merits, no action being taken to dissolve the same. On the final trial of the equity case the court found against Barr, and dismissed his petition, and thereupon an action was brought upon the bond given by Barr at the time of obtaining the restraining order. The only element of damages claimed by plaintiff is attorney's fees, and the only question to be determined is whether attorney's fees are recoverable in a suit upon a bond, where the restraining order of injunction is merely ancillary to the main action. In Cunningham v. Finch (Neb.) 88 N. W. 168, it was held “that a recovery of counsel fees for the trial of a case will not be allowed as an element of damage for an injunction wrongfully obtained if the injunction proceedings be only ancillary to the main case.” To the same effect is the holding in Bank v. Hackett (Neb.) 89 N. W. 412.

These cases, we think, fully dispose of the only question raised, and we recommend that the judgment appealed from be reversed, and the action dismissed.

ALBERT and AMES, CC., concur.

PER CURIAM.

The conclusions reached by the commissioners are approved, and, it appearing that the adoption of the recommendations made will result in a right decision of the cause, it is ordered that the judgment appealed from be reversed, and the case dismissed.