C. H. Albers Commission Co. v. Milliken

• Decision Date: 02 June 1914
• Docket Number: No. 13865.,13865.
• Parties: C. H. ALBERS COMMISSION CO. v. MILLIKEN et al.
• Court: Missouri Court of Appeals

167 S.W. 1056

183 Mo. A. 662

C. H. ALBERS COMMISSION CO. v. MILLIKEN et al.

No. 13865.

St. Louis Court of Appeals. Missouri.

June 2, 1914.

Rehearing Denied June 17, 1914.

1. INJUNCTION (§ 186)—TEMPORARY INJUNCTION —DAMAGES ON DISSOLUTION—ATTORNEY'S FEES.

Upon the dissolution of a temporary injunction, erroneously granted, the defendants are entitled to recover the counsel fees reasonably incurred in procuring the dissolution of the injunction, whether or not such fees had been actually paid.

2. INJUNCTION (§ 252)—TEMPORARY INJUNCTION —DAMAGES ON DISSOLUTION—ATTORNEY'S FEES.

Where the attorneys for defendants, against whom a temporary injunction was erroneously granted, had rendered an account with the defendants for services relating to the injunction and other matters, but denied that it was an account stated, the injunction plaintiff cannot maintain that the account was an account stated, which fixed the measure of its liability on the injunction bond.

3. INJUNCTION (§ 239)—LIABILITY ON BOND —RELEASE.

Where an injunction was granted against a number of defendants, whose interests were several, the liability of plaintiff on the injunction bond is several, and not joint, and a release by one of the defendants does not bar the right of the others, especially where it was limited by its express terms to the claim of that defendant.

4. ABATEMENT AND REVIVAL (§ 77)—DEATH OF PARTY—SUBSTITUTION OF REPRESENTATIVE —CHANGE OF CAPTION.

Where, after the death of a defendant, his representatives were substituted as parties to the action, the failure to change the name in the caption to a motion by defendants, although the name was changed in other captions, and the motion was heard and determined as though it was by the representatives, was immaterial.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Suit by the C. H. Albers Commission Company against John T. Milliken and others. From the allowance by the trial court of damages to the defendants on the dissolution of a temporary injunction granted to plaintiff, plaintiff appeals. Affirmed.

Barclay, Fauntleroy & Cullen, of St. Louis, for appellant. Judson, Green & Henry, of St. Louis, for respondents.

REYNOLDS, P. J.

This case, in point of fact, five consolidated cases, the five cases commenced in January, 6 and 7, 1904, but thereafter consolidated and here referred to as one case, has been in the courts, trial and appellate, ever since that date, and has been presented in one shape or another, and on one phase or another, to the Supreme Court of the state three times. See Albers Commission Co. v. Spencer et al., 205 Mo. 105, 103 S. W. 523, 11 L. R. A. (N. S.) 1003; Albers Commission Co. v. Spencer et al., 236 Mo. 608, 139 S. W. 321, Ann. Cas. 1912D, 705; Albers Commission Co. v. Spencer et al., 245 Mo. 368, 150 S. W. 712. In point of fact, it was before the Supreme Court the fourth time, the last time having been transferred to that court by our court, on the authority of the decision of the Supreme Court in Curtis v. Sexton, 252 Mo. 221, 159 S. W. 512. Under the authority of the decision of the Supreme Court in Rourke et al. v. Holmes Street Railway Co. et al., 166 S. W. 272, not yet officially reported, but in which a motion for rehearing was overruled April 13, 1914, the cause was transferred back to our court and submitted and argued, and it is upon the case on final submission and argument before us that we are now called upon to pass. Questions arising out of this same deal, and over an injunction which was sued out in aid although not between these parties, were also before our court in Akin v. Rice et al., 137 Mo. App. 147, 117 S. W. 655. Moreover, as stated by plaintiff in its abstract, a writ of error was sued out to the last decision of our Supreme Court (245 Mo. 368, 150 S. W. 712, supra, as we understand), from the Supreme Court of the United States. It appears, however, that this writ was dismissed by that court March 8, 1914, as a cause not within its jurisdiction. See 232 U. S. 719, 34 Sup. Ct. 601, 58 L. Ed. ___.

The facts in the case are so fully covered by these several decisions that it is sufficient to refer to those decisions for the facts without repeating them here. The Supreme Court, by its decision in Albers Commission Co. v. Spencer, 236 Mo. 608, 139 S. W. 321, Ann. Cas. 1912D, 705, supra, which involved the question here present, namely, assessment of damages under the injunction bond, sent the case back to the trial court for error committed in the assessment, in that it included services rendered in the Supreme Court. Again reaching the trial court, the matter came up on the original motion filed March 24, 1904, by counsel in the name of Spencer and Milliken for assessment of damages accruing down to and including the dissolution of the temporary injunctions which occurred March 24, 1904, and on an answer or return to this motion, and that is the matter now before us. Mr. Spencer having died pending the action, his legal representatives were substituted for him, and the present judgment allowing attorney's fees was entered in favor of Milliken and the legal representatives of Spencer. There were five cases in which injunctions had been issued and, as before stated, they were, by agreement, consolidated and heard together, both on the dissolution of the temporary injunction and afterwards on the several trials and appeals. On the final hearing on the motion, the court allowing a total of $5,695.85, divided this proportionately between the five suits, in each of which the Albers Commission Company was plaintiff and Spencer and Milliken, with others, parties defendant, the others, save the Merchants' Exchange and National Bank of Commerce in St. Louis, being brokers for Spencer and Milliken.

In its answer to the motion the Commission Company set up (1) a defect of parties movent in the motion and that all necessary parties are not made parties to it; (2) the parties named as movents are not entitled to maintain the motion; (3) the motion should not be heard until final decree had been rendered in the original consolidated causes, which had not yet been decided and was then pending on appeal (with supersedeas) in the Supreme Court (this answer was filed June 13, 1912; the main case [see 245 Mo. 368, 150 S. W. 712, supra] was not decided until October 9, 1912); (4) the motion is not lawfully triable until a final decree shall have been rendered in the original consolidated causes; (5) a release given by the National Bank of Commerce in St. Louis is pleaded in bar; (6) a denial, generally, of each and every allegation of the motion.

The court, making an allowance of $5,695.85 as above stated, divided it on the basis of $3,500 attorney's fees for services for the dissolution of the temporary injunctions in the five cases; $359.21 for interest on this at 6 per cent. from June 4, 1904, when the injunction was dissolved, to December 23, 1912, when this judgment assessing damages was entered, and $399.80 for interest on the amount which had been deposited by the Albers Commission Company with the National Bank of Commerce as margin to secure the deals of the Commission Company at the rate of 6 per cent. for two months and five days, that is to say from the date of issue of the temporary injunction until its dissolution. It is this allowance that is now complained of and from which, interposing a motion for new trial, plaintiff below brought its appeal to this court.

It should be said that pending the cause in its various stages, two individuals, sureties on the injunction bond, Messrs. Albers and Vogelsang, died, and the cause has since been prosecuted against the Albers Commission Company alone. It also appeared that the Commission Company had settled with the Merchants' Exchange and with the National Bank of Commerce for costs and attorney's fees, plaintiff securing the release pleaded from the latter.

It is set out in the abstract furnished by appellant that since the death of Mr. Spencer, the causes have...