Cunningham v. Finch

• Citation: 63 Neb. 189,88 N.W. 168
• Parties: CUNNINGHAM ET AL. v. FINCH ET AL.
• Decision Date: 04 December 1901
• Court: Supreme Court of Nebraska

63 Neb. 189

88 N.W. 168

CUNNINGHAM ET AL.

v.FINCH ET AL.

Supreme Court of Nebraska.

Dec. 4, 1901.

Syllabus by the Court.

1. Attorney's fees incurred in an unsuccessful attempt to dissolve an injunction on a motion made therefor before the final trial are not a proper element of damage in a suit on the injunction bond.

2. A recovery of counsel fees for the trial of a case will not be allowed as an element of damages for an injunction wrongfully obtained, if the injunction proceedings be only ancilliary to the main case.

Commissioners' opinion. Department No. 3. Error to district court, Lancaster county; Hall, Judge.

Action by Leroy D. Finch and others against Felix Cunningham and others. Judgment for plaintiffs. Defendants bring error. Reversed.Geo. A. Adams, W. J. Lamb, and Richard Cunningham, for plaintiffs in error.

Frank J. Kelley, for defendants in error.

DUFFIE, C.

In the year 1895, Leroy Finch and Freeman C. Finch, the defendants in error, were tenants in possession of a farm in Lancaster county, Neb., owned by the plaintiffs in error Cunningham and Ledwith. These owners brought an action in the district court of Lancaster county, alleging in their petition that the tenants were committing waste upon the farm by cutting shade and ornamental trees, which, together with fence posts and other improvements upon the premises, they used for fuel; that they were insolvent, and that plaintiffs would suffer great injury if defendants were not restrained from such acts. The plaintiffs prayed for a temporary injunction restraining the defendants from committing waste, and that upon the final hearing the right to the property might be found in the plaintiffs, and that plaintiffs recover from defendants $200 damage for the injury sustained. A temporary injunction was issued in said cause, the plaintiffs therein executing a bond in the sum of $100. A motion to dissolve this temporary injunction, made by the defendants, was overruled by the court, and upon a final trial of the action judgment was entered finding the defendants entitled to most of the property in controversy, and allowing them to remove certain described property to which they had established title. After the final disposition of that case the present action was commenced in the district court of Lancaster county, in which Leroy Finch and Freeman C. Finch, the defendants in the former suit, sought to recover from the plaintiffs in that case and the sureties upon the injunction bond their damages sustained in consequence of the issuing of the injunction. The trial resulted in a judgment for the plaintiffs below in the sum of $75.30, and from this judgment the plaintiffs in error have brought the case to this court for review.

Numerous errors are assigned as having occurred upon the trial and in giving and refusing instructions to the jury, but, as we view the case, it will be...