Carnes v. Heimrod

• Decision Date: 18 June 1895
• Docket Number: 6292
• Citation: 63 N.W. 809,45 Neb. 364
• Parties: EDWARD C. CARNES ET AL. v. LOUIS HEIMROD
• Court: Nebraska Supreme Court

63 N.W. 809

45 Neb. 364

EDWARD C. CARNES ET AL. v. LOUIS HEIMROD

No. 6292

Supreme Court of Nebraska

June 18, 1895

ERROR from the district court of Douglas county. Tried below before DAVIS, J.

AFFIRMED.

Frank T. Ransom and Blair & Goss, for plaintiffs in error, cited as to the right to recover attorneys' fees: Miles v Edwards, 6 Mont., 180; 1 Sutherland, Damages, p. 141; High, Injunctions, secs. 973, 974; Ah Thaie v. Quan Wan, 3 Cal. 216; State v. Wakeley, 28 Neb. 437.

Smith & Sheean and Mahoney, Minahan & Smyth, contra, cited: High Injunctions, secs. 1685, 1692; Hicks v. Michael, 15 Cal. 107; Winkler v. Roeder, 23 Neb. 709; Atkins v. Gladwish, 25 Neb. 390; Oelrichs v. Spain, 15 Wall. [U.S.], 211.

OPINION

RYAN, C.

This action was brought in the district court of Douglas county for the recovery, as damages, of such attorneys' fees as plaintiff alleged had been earned in procuring to be dissolved a temporary restraining order made in an action which had been pending in said district court wherein said E C. Carnes was plaintiff and Louis Heimrod was defendant. The undertaking which formed the basis of the plaintiff's alleged cause of action was not introduced in evidence, and there is to be found in the record no copy of the original restraining order by which such undertaking was required. In State v. Wakeley, 28 Neb. 431, 44 N.W. 488, it was held that an order of this kind did not amount to, or take the place of, a temporary injunction, for which reason the application for a mandamus requiring the district judge to fix the amount of the penal sum of an undertaking of the nature of that above referred to was denied. In the case just cited was this language: "It is very clear that the legislature never intended to give the force and effect to a restraining order which attaches to an injunction when regularly allowed. It simply suspends proceedings until an opportunity can be given for the parties to be heard, and upon that hearing having been had, and a decision rendered upon the application, the whole force of the restraining order ceases by its own limitation." The restraining order above contemplated was one which had force and effect until the motion for the allowance of a temporary injunction could be disposed of. It might be, that such an order in this case fixed a very early date as that on which the motion just mentioned would be heard or determined. In such case the preparation would be for the hearing of the motion to allow the temporary injunction prayed, for the reason that little or nothing could be gained by moving to dissolve the restraining order. Possibly this consideration may have influenced the district court to hold that the services rendered, for which compensation is now...