Bullard v. Harkness

• Decision Date: 10 October 1891
• Citation: 83 Iowa 373,49 N.W. 855
• Parties: BULLARD v. HARKNESS ET AL.
• Court: Iowa Supreme Court

83 Iowa 373

49 N.W. 855

BULLARD

v.HARKNESS ET AL.

Supreme Court of Iowa.

Oct. 10, 1891.

Appeal from district court, Humboldt county; GEORGE H. CARR, Judge.

Action upon an injunction bond, and answer denying generally, and setting up a counter-claim, to which a reply was filed, denying the same. Trial to the court, and judgment dismissing plaintiff's petition, and in favor of defendants on the counter-claim. Plaintiff appeals.E. F. Bullard, for appellant.

A. E. Clark, for appellees.

GIVEN, J.

1. Appellant, having a judgment and decree of foreclosure against certain lands, was proceeding to sell the same on special execution. Appellee Prouty, claiming to be the owner of the lands under a tax-deed, brought an action to enjoin the sale, and to quiet his title; and to procure the issuance of the injunction executed the bond sued upon, with appellee Harkness as his surety. On final hearing it was decreed that appellee Prouty held the lands as trustee for appellant, that the injunction be dissolved, and that appellee convey the land to appellant. Appellant asks to recover on the bond costs and expenses alleged to have been incurred in obtaining a dissolution of the injunction; the value of the use of the land, or interest on the amount at which appellant would have bid it off; and $10.60, paid for advertising the sale. Appellant assigns as errors the excluding of these claims for damages.

2. There was no direct attack made against the injunction. It was left to stand or fall upon the question of ownership; and, Prouty's title being found to be that of a trustee for appellant, the injunction was dissolved. The costs and expenses incurred by appellant were in trying the issue of ownership, and are not different from what they would have been if no injunction had been issued. It is only such expenditures as were necessarily incurred in defending against the injunction that are recoverable on the bond, and expenses incurred in defending against other features of the case in which the injunction was issued are not included. When an injunction is the only relief sought, and dissolution is procured on final hearing, necessary costs and expenses in procuring the dissolution are recoverable. Behrens v. McKenzie 23 Iowa, 333;Langworthy v. McKelvey, 25 Iowa, 48;Reece v. Northway, 58 Iowa, 187, 12 N. W. Rep. 258;Ford v. Loomis, 62 Iowa, 586, 16 N. W. Rep. 193, and 17 N. W. Rep. 910;Thomas v. McDaneld, 77 Iowa, 300, 42 N. W. Rep. 301. When the injunction is merely auxiliary, expenses incurred in defending the action are not recoverable. Carroll Co. v. Land Co., 53 Iowa, 685, 6 N. W. Rep. 69. Appellant relies upon Thomas v. McDaneld, supra. While there is a similarity in the facts, there is this controlling distinction: In that case the only relief asked was to enjoin the sale. “Strike the prayer for injunction, and the allegations upon which it was asked from the petition, and there is...