Creek v. McManus

Decision Date20 January 1896
PartiesCREEK v. McMANUS et al.
CourtMontana Supreme Court

Appeal from district court, Gallatin county; F. K. Armstrong, Judge.

Suit by Rachel E. Creek against John McManus and others to recover damages on an injunction bond. From a judgment in favor of plaintiff, and from an order denying a motion for new trial defendants appeal. Reversed.

Luce & Luce, for appellants.


This is a suit for damages, on an injunction bond. The complaint alleges, substantially, that in July, 1890, defendant McManus commenced an injunction suit against the plaintiff, in the district court of Gallatin county, to restrain the commission of waste on the premises of said McManus, and to perpetually enjoin the plaintiffs from constructing an irrigation ditch thereon; that a temporary restraining order was issued in said suit against this plaintiff; that the defendants Cline and Davis were the sureties on the undertaking which McManus gave to secure said injunction; that thereafter said injunction was, by order of the court, dissolved; that plaintiff was damaged and put to $100 costs in employing an attorney to procure the dissolution of the injunction, and suffered and sustained damages to growing crops on her land caused by the wrongful issuance and service of the injunction, as well as other costs and expenses, and labor, incurred in dissolving the injunction, and performed upon said irrigating ditch. All of the allegations of the complaint are denied. The case was tried to a jury, who returned a general verdict for the plaintiff in the sum of $225. From the judgment entered thereon, and the order denying a motion for a new trial, the defendants appeal.

This is the second appeal in this case. See Creek v McManus, 13 Mont. 152, 32 P. 675. On the former appeal the only question presented by the record was the right of Creek to recover attorney's fees paid to secure the dissolution of the injunction. From the record on that appeal, it appeared that that was the only question involved. We then held that "such damages may be recovered in an action upon the undertaking given in the injunction suit." The case, as presented by the record on that appeal, we held, was distinguished from other decisions of this court cited in the opinion. But the record now discloses a very different state of facts. On the trial of the case below, from which this appeal is taken, very many other things seem to have been litigated. In fact, the case was tried upon its merits. On the first trial the plaintiff testified, as the record on the former appeal showed: "I employed Judge Liddell to dissolve the temporary injunction and to resist the perpetual injunction, and that was the only purpose for which I employed him in that case." The record on this appeal shows that she testified: "I employed an attorney in that case. I employed Moses J Liddell. I paid him for his services in that case $100." This evidence, it will be seen, brings the case squarely within the cases from which we distinguished it in Creek v. McManus, 13 Mont. 152, 32 P. 675. On the former appeal, the testimony of the plaintiff separated the services of the attorney from his services in attending to the case generally on its merits, and confined the payment of the fee to his services in dissolving the injunction. On this appeal her testimony does not separate the services, or confine the...

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