Chicago, A. & N. Ry. Co. v. Whitney

• Decision Date: 24 October 1911
• Citation: 132 N.W. 840,152 Iowa 520
• Parties: CHICAGO, ANAMOSA & NORTHERN RAILWAY COMPANY, Appellant, v. J. H. WHITNEY, Administrator of the Estate of JOSEPH WHITNEY, Deceased, and others
• Court: Iowa Supreme Court

132 N.W. 840

152 Iowa 520

CHICAGO, ANAMOSA & NORTHERN RAILWAY COMPANY, Appellant, v. J. H. WHITNEY, Administrator of the Estate of JOSEPH WHITNEY, Deceased, and others

Supreme Court of Iowa, Des Moines

October 24, 1911

Appeal from Linn District Court.--HON. F. O. ELLISON, Judge.

ACTION to recover on an injunction bond. Judgment for the defendants, and plaintiff appeals.

Affirmed.

Remley & Remley and Jamison, Smyth & Hann, for appellant.

Voris & Haas, for appellees.

OPINION

SHERWIN, C. J.

Joseph Whitney was the owner of property in Bowlder township, Linn county, when said township voted a tax in aid of the construction of the appellant's line of road through said township. He brought an action to have the tax so voted declared void for various reasons, and asked that a temporary writ of injunction issue, restraining the treasurer of Linn county from collecting said tax and paying the same to the plaintiff, and restraining the plaintiff from receiving the same. A temporary writ was issued, and Whitney gave a bond, running to the treasurer, conditioned to pay the damages occasioned by the wrongful issuance of the writ. The writ was issued on the 20th day of December, 1904, and in the early part of February, 1905, it was so modified by stipulation as to allow the treasurer to collect the taxes due under the levy. Upon final trial, the tax was held valid and Whitney's action was dismissed, and the injunction dissolved. Some time thereafter the present action was brought on Whitney's bond to recover attorneys' fees incurred in defending against the issuance of the injunction and for other costs in that suit. The defendants herein pleaded that other issues besides the injunction were involved and tried in the original suit; that the bond did not inure to the benefit of the plaintiff; and that at the time of the issuance of the injunction, and at the time of its final determination, the township trustees had not granted the plaintiff a certificate of the completion of the road, and because thereof that plaintiff was, at no time during the life of the injunction and the pendency of the action, entitled to the tax collected by the treasurer, and hence suffered no damage.

In the trial of the instant case the issues were: First, was the issuance of the injunction in the original suit the main question tried therein, or was it collateral and auxiliary only? Second, were the attorney's fees and expenses incurred in dissolving the writ, or were they earned in defending other branches of the case? Third, did the bond sued on inure to the benefit of the plaintiff, and can it recover thereon? Fourth, did the temporary injunction interfere with any rights of the plaintiff, in view of the fact that no certificate had been granted by the township trustees, as provided by law? At the close of the evidence the defendants filed a motion for a directed verdict based on the four propositions already noted. During the progress of the trial, the court had ruled that the first three defenses herein noted were not good, and had reserved his ruling on the fourth. When he ruled on the motion to direct a verdict he referred to his previous rulings on the other points, and in...