Campbell v. Metcalf

Decision Date31 August 1871
Citation1 Mont. 378
PartiesCAMPBELL et al., respondents, v. METCALF et al., appellants.
CourtMontana Supreme Court


Appeal from the Third District, Meagher County.

THIS action was tried in November, 1870, before SYMES, J., and the jury returned a verdict for Campbell and other plaintiffs. Metcalf made a motion for a new trial, which was overruled in May, 1871, by WADE, J. The facts appear in the opinion.

CHUMASERO & CHADWICK, for appellants.

There was no evidence showing any damages beyond merely nominal damages. Respondents should show that they had tried unsuccessfully to get work. They must show actual damages from enforced idleness. There was no evidence that respondents' mining ground was worth any thing, or would pay wages. The ground could not be worked on account of drainage. The work contemplated by respondents would have been useless. Respondents have sustained no damage on account of loss of time.

The only attorneys' fees that can be recovered are those that were paid solely on the motion to dissolve the injunction. The only evidence shows that the attorneys were paid for their services in the whole case. The injunction was dissolved as a matter of course after the verdict. The jury could not render a verdict for any, except actual damages.

SHOBER & LOWRY and W. E. CULLEN, for respondents.

The verdict will not be disturbed if there is some evidence to sustain it. Where there is no certain measure of damages, the verdict will not be disturbed, except for prejudice, passion or corruption in the jury. Hill. on New Trials, 432, § 3; Kimball v. Gearhart, 12 Cal. 48;Baxter v. McKinlay, 16 Id. 76;Burnett v. Whitesides, 15 Id. 35.

A verdict will not be set aside because the jury assessed higher damages than the court would have given, unless the jury were actuated by improper motives, or erroneously assessed them. Hill. on New Trials, 434, § 10; 436, § 14. If by any calculation, which the evidence will reasonably support, the verdict can be sustained as to amount, a new trial should not be granted.

Witnesses testify to the facts, and the question of damages is left to be assessed by the jury under a given state of facts. Sedgw. on Dam. 694.

The instructions were as favorable to the respondents as the law would warrant.


This is an action on an injunction bond for damages occasioned by the wrongful suing out of an injunction. It appears from the record that one David P. Rankin had brought an action to recover the possession of a certain mining claim against respondents. That as the said mining claim was valuable only for the precious metals therein contained, and in order to prevent any judgment he might obtain from being valueless he had procured a temporary injunction pending the action restraining respondents from working said claim. The action was decided in favor of respondents. They allege that by reason of this injunction they were compelled to remain idle for a certain time, that they were damaged by reason of the filling up of their drain and shaft during the time they were restrained from working the same, and that they were compelled to pay $1,000 attorney fees to procure the dissolution of said injunction, and that they were otherwise put to expense and trouble. For all of these causes they allege their damages to be $5,000.

It appears from the testimony presented in the record that respondents were idle about sixty days, that the value of the work of all three was $18 per day. This would amount to $1,080. It does not appear what amount of damages respondents sustained by reason of filling up their drain and shaft. It appears that $1,000 was paid by respondents for attorneys' fees in the action which involved the title to the mining claim, but it does not appear what portion of this $1,000 was paid for procuring the dissolution of the injunction. It appears they spent $100 in going to Helena to procure counsel in this action about the title to the mining claim, but what proportion, if any, was spent in procuring counsel to dissolve the injunction is not shown. The jury returned a verdict for $1,250 damages, and judgment was entered against appellant for this amount.

The attorney fees and expenses in the action between respondents and Rankin in determining the title to mining ground were not properly chargeable as damages for the...

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6 cases
  • Moriarity v. Galt
    • United States
    • Illinois Supreme Court
    • June 16, 1888
    ...v. Brown, 5 Lans. 511; Hotchkiss v. Platt, 8 Hun, 46; Childs v. Lyons, 3 Rob. (N. Y.) 704; Strong v. Deforest, 15 Abb. Pr. 427;Campbell v. Metcalf, 1 Mont. 378;Allport v. Kelley, 2 Mont. 343;Newton v. Russell, 87 N. Y. 527;Burgen v. Sharer, 14 B. Mon. 399; where it is stated that the only d......
  • McDermott v. American Bonding Co. of Baltimore
    • United States
    • Montana Supreme Court
    • April 14, 1919
    ... ... services rendered in the general management of the case on ... its merits or other branches thereof. Campbell v ... Metcalf, 1 Mont. 378; Allport v. Kelley, 2 ... Mont. 343; Creek v. McManus, 17 Mont. 445, 43 P ...          (c) If ... relief ... ...
  • Tague v. John Caplice Co.
    • United States
    • Montana Supreme Court
    • April 27, 1903
    ...from the jury, and not permit them, by mere surmises, conjectures, or speculations, to determine such an issue by their verdict. Campbell v. Metcalf, 1 Mont. 378;Sweeney v. Darcy, 21 Mont. 188, 53 Pac. 540. The only question before the court and jury for determination upon the pleadings and......
  • Parker v. Bond
    • United States
    • Montana Supreme Court
    • January 6, 1883
    ...Their services, after the injunction was dissolved, in the trial before the court, are not covered by the undertaking. Campbell v. Metcalf, 1 Mont. 378;Allport v. Kelley, 2 Mont. 343;Bustamente v. Stewart, 55 Cal. 115; High, Inj. §§ 973, 974, and cases cited. If any portion of these attorne......
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