Creek v. McManus

Decision Date10 April 1893
Citation32 P. 675,13 Mont. 152
PartiesCREEK v. McMANUS et al.
CourtMontana Supreme Court

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

Action by Rachel E. Creek against John McManus and others on an injunction bond. There was a judgment for defendants, and plaintiff appeals. Reversed.

The other facts fully appear in the following statement by DE WITT, J.:

The plaintiff brought this action to recover against the defendants damages for the alleged wrongful issuance of an injunction. McManus, defendant herein, brought an action for an injunction against this plaintiff, and, in such action gave the statutory undertaking, with Cline and Davis, the other defendants herein, as sureties. That action was for an injunction only. In that action the plaintiff herein and defendant therein recovered judgment for costs, and for the dissolution of the injunction. Now, in the case at bar she seeks damages occurring by the issuance of that injunction. The judgment in this case was for defendant, and plaintiff herein appeals. The case was tried to a jury. At the close of the evidence for the plain tiff, the defendant moved the court "to instruct the jury to bring in a verdict for the defendant, on the ground of a failure of proof by plaintiff." This motion was granted, and the court instructed the jury accordingly. In pursuance to the instruction, the jury found for the defendants, and judgment was thereupon entered. From this judgment the plaintiff appeals.

Luce & Luce, for respondents.

DE WITT, J., (after stating the facts.)

Appellant contends that the granting of the motion to instruct the jury to find for the defendants was error. This action by the court in a civil case was practically, in effect, the granting of a nonsuit, and must be classified and treated as a nonsuit. That this is the proper view of that action by the court was so fully, and, to my mind, satisfactorily, treated in the recent case of McKay v. Railway Co., (December term,) 31 P. 999, that it would not be profitable to add to the remarks made in that case. In reviewing the judgment rendered upon the sustaining of that motion for a nonsuit, all facts will be considered as proved which the evidence tends to prove. Herbert v. King, 1 Mont. 475; Gans v Woolfolk, 2 Mont. 463. Does the evidence in this case tend to prove any cause of action? The cause of action was for damages occurring by reason of the injunction action of defendant herein against plaintiff herein. One item of the alleged damages is pleaded in the complaint in this case as follows: "That, in order to defend said suit, and to procure the dissolution of said writ of injunction, this plaintiff (defendant therein) was obliged to, and did, employ an attorney at an expense of one hundred dollars, which sum so paid was a reasonable sum for said services." We think that there was evidence tending to sustain this allegation. That action of McManus v. Creek was for an injunction only. The injunction was not asked for in connection with any other cause of action; nor were any damages claimed; nor was any other relief than the injunction asked. Nothing was obtained by plaintiff in that action except a temporary injunction. That temporary injunction was dissolved on the trial of the action, and not upon a separate motion made for that purpose. Plaintiff testified on her examination as a witness as follows: "I am the plaintiff in this case. I was the defendant in the case of John McManus v. Rachel E. Creek, that was tried about a year ago; and in that case I employed a person to resist the injunction which had been served on me in that case. 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." Respondent contends that the fee paid to the attorney for "dissolving the temporary injunction," and "to resist the perpetual injunction," is not by the evidence apportioned between these two services, and that the jury could not determine what portion of the one hundred dollars was paid for dissolution of the injunction. Campbell v. Metcalf, 1 Mont. 378. But in that case the fees paid to the attorneys were in an action brought to recover possession of a mining claim. In that action an injunction was procured. The fees were paid to the attorneys in a gross sum for their services in determining the title to the property, and in procuring a dissolution of the temporary injunction. It appeared in the evidence that there were these two separate and distinct services. It did not appear what portion of the fees were paid for dissolving the injunction, and what portion for determining the title to the property. The court said "As there was no evidence to show how much...

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