Cook v. Greenough

• Decision Date: 16 April 1894
• Citation: 36 P. 357,14 Mont. 352
• Parties: COOK v. GREENOUGH et al.
• Court: Montana Supreme Court

36 P. 357

14 Mont. 352

COOK v. GREENOUGH et al.

Supreme Court of Montana

April 16, 1894

Appeal from district court, Missoula county; C. S. Marshall, Judge.

Action by Thomas E. Cook against Thomas L Greenough and others on an injunction bond. Judgment for plaintiff. Defendants appeal. Reversed conditionally.

Webster & Wood, for appellants.

Bickford, Stiff & Hershey, for respondent.

PER CURIAM.

This action is brought against the sureties on an injunction bond to recover damages suffered by defendant in the injunction suit wherein such bond was executed and delivered, by reason of the employment of counsel and other expense incurred in procuring a dissolution of the injunction. Plaintiff recovered by the verdict of the jury $100 for counsel fees, and $75 for other expenses, incurred in the injunction action. This appeal is by defendants from an order denying new trial. The specifications are that the evidence does not sustain the verdict in two respects: First, appellants contend that there is no evidence that plaintiff herein became liable to pay an attorney fee for services in the injunction action; but, on the contrary, the evidence does show that plaintiff's attorney in that action was employed by him, and that he performed the services which resulted in a dissolution of said injunction, and that the services were reasonably worth $100, and this amount was found by the jury therefor. These facts clearly show that plaintiff became liable for such attorney's services. Secondly. The verdict also gave $75 for other expenses. The evidence in this respect, by the most liberal interpretation, shows damages not exceeding $32.50. The court should have required plaintiff to remit the amount of damages not warranted by the evidence, of granted a new trial. The case is remanded, with directions to grant a new trial, The case is remanded, with directions to grant a new trial, unless such excessive damages are remitted. Remanded.

All concur.