Darling v. McBride

• Decision Date: 09 April 1910
• Docket Number: 15,924
• Citation: 125 N.W. 1088,86 Neb. 481
• Parties: FRANK DARLING, APPELLANT, v. ZAIDEE M. MCBRIDE ET AL., APPELLEES
• Court: Nebraska Supreme Court

125 N.W. 1088

86 Neb. 481

FRANK DARLING, APPELLANT, v. ZAIDEE M. MCBRIDE ET AL., APPELLEES

No. 15,924

Supreme Court of Nebraska

April 9, 1910

APPEAL from the district court for Boone county: JAMES R. HANNA JUDGE. Reversed with directions.

REVERSED.

H. C Vail, for appellant.

Frank D. Williams, contra.

LETTON J. SEDGWICK, J., FAWCETT, J., dissenting, REESE, C. J., dissenting in part.

OPINION

LETTON, J.

This is an action upon an injunction bond. The bond was given by the defendant in this case in an injunction proceeding which was ancillary to an action for divorce brought by her against plaintiff herein. At the time the action for divorce was begun, plaintiff, who was then the husband of the defendant Zaidee M. Darling, now Zaidee M. McBride, had advertised for sale a large amount of personal property. In her petition for divorce Mrs. Darling alleged that certain specified chattels thus advertised were her individual property, and that other articles were the property of defendant, and that he had withdrawn from deposit in a bank certain money received by him from the sale of property belonging to her. She prayed for a divorce, for alimony, and that the defendant be enjoined from selling any part of the personal property or disposing of the funds until the further order of the court. A temporary order of injunction was issued upon the giving of the bond sued upon in this action. Afterwards it was agreed that the property should be sold at public auction and the proceeds held by one Goodrich subject to the order of the court. A motion was made to vacate the temporary injunction, which was sustained as to a portion of the property, and it was ordered that the proceeds of the remainder remain in the hands of Mr. Goodrich until a hearing was had as to the ownership. Upon the final hearing of the case the court found that the plaintiff was entitled to a divorce, found further that she was entitled to the sum of $ 250, the proceeds of the sale of certain hogs, allowed her this as alimony, and dissolved the injunction in all other respects. Afterwards this action was brought upon the bond to recover attorney's fees for services in procuring the dissolution of the injunction, and for damages for depriving the plaintiff of the use of the proceeds of the sale. The court found generally for defendant and dismissed the action.

The testimony shows that the plaintiff paid the sum of $ 50 to his attorney as a fee for services in obtaining a dissolution of the temporary injunction as to most of the property, and for trying the respective rights of the parties to the remaining property at the final hearing. The plaintiff further testifies that, on account of the injunction tying up his money, he was unable to complete a contract for the purchase of 160 acres of land in Frontier county, and that he lost the use of the proceeds of the sale from February 25 to August 30, 1907; that if he had obtained the land it would have been worth about $ 700 to him, and that the interest upon the money aside from the land transaction would be worth 10 per cent. The anticipated profits upon his proposed speculation in land cannot be taken as the measure of damages, and under the circumstances we do not feel justified in saying that the plaintiff was entitled to interest upon the proceeds of the sale. The main controversy here is as to the right to recover attorney's fees. On the one hand, the plaintiff asserts that when injunctive relief is granted as ancillary to the main issue in a case, and the defendant moves to dissolve the temporary injunction and expends money for attorney's fees in this behalf, it is recoverable in an action upon the injunction bond if he is successful, while the defendant insists that in such a case such fees are not recoverable. The defendant relies upon the cases of Cunningham v. Finch, 63 Neb. 189, 88 N.W. 168, Estate of Barr v. Post, 93 N.W. 144, 4 Neb. Unoff. 32, and Leonard v. Capital Ins. Co., 101 Iowa 482, 70 N.W. 629.

Cunningham v. Finch was a case where the owners of a farm brought an action to enjoin waste. A temporary injunction was issued. A motion to dissolve this was overruled, and upon final trial judgment was rendered finding for the defendants. The defendants then sued and recovered a judgment upon the injunction bond for attorney's fees in defending the action. The district court proceeded upon the theory that the defendants were entitled to recover all the damages and expenses which they had incurred, not limiting the recovery of fees merely to those paid out for dissolving the injunction. This court held this was error, and quoted the opinion in Trester v. Pike, 60 Neb. 510, 83 N.W. 676, where it is held: "It is only where a trial of the principal issues involved is necessary to dispose of an injunction that attorney's fees for the trial of a case are proper to be allowed as damages caused by an injunction wrongfully issued"--and the judgment of the district court was reversed.

In Barr v. Post, supra, the injunction proceedings were only ancillary to the main action, and the court held, following Cunningham v. Finch, supra, and First Nat. Bank v. Hackett, 89 N.W. 412, 2 Neb. Unoff. 512, that the 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 ancillary to the main case.

The plaintiff, in support of his contention that in such cases attorney's fees for securing the dissolution of a temporary injunction are proper elements of damage, cites Jameson v. Bartlett, 63 Neb. 638, 88 N.W. 860, First Nat. Bank v. Hockett, supra, and Trester v. Pike, supra.

Trester v. Pike was an action in the nature of a creditor's bill to set aside certain transfers of real estate, in which an ancillary restraining order was issued. Upon the final hearing the action was dismissed, the court finding that there was no equity in the bill. In an action upon the injunction bond, damages were recovered for services of the attorney in trying the action. This was held to be error, and the court said, "The necessary and reasonable expenses for attorney's fees expended or incurred in resisting an order of injunction wrongfully issued, or procuring the dissolution thereof, are recoverable as an element of damages. But when the right to an injunction is not the main issue of the case, such damages are limited to the expenses incurred in securing the dissolution of the injunction, as distinguished from the expenses incurred in the trial of the principal issues involved. Kittle v. De Lamater, 7 Neb. 70; Raymond Bros. v. Green & Co., 12 Neb. 215, 10 N.W. 709; Gyger v. Courtney, 59 Neb. 555, 81 N.W. 437; Mitchell v. Hawley, 79 Cal. 301, 21 P. 833; Newton v. Russell, 87 N.Y. 527. It is only where a trial of the principal issues involved is necessary to dispose of an injunction that attorney's fees for the trial of the case are proper to be allowed as damages caused by an injunction wrongfully issued. 1 Beach, Injunctions, sec. 206; Andrews v. Glenville Woolen Co., 50 N.Y. 282." This case is followed in the Jameson case, supra. It is therein said: "The rule established by a multitude of decisions is that expenses necessarily incurred in obtaining a dissolution of the injunction may be recovered in an action on the bond, and that reasonable counsel fees are to be regarded as part of such expenses. But it is equally well settled that expenses paid or incurred for professional services in defending the main action are not ordinarily damages which the obligee of the bond has sustained by reason of the injunction."

The distinction between the cases cited by plaintiff and defendant is clear, and they are not inconsistent with each other. The plaintiff is entitled to recover the amount which he expended for attorney's fees in procuring the dissolution of the temporary order of injunction, but not for trying the divorce case. The fee of $ 50 paid by him is shown to be a reasonable fee for the services rendered. The fact that the injunction was not dissolved as to a small portion of the property in controversy is not material. We think the district court was justified in refusing to allow any other damages.

The judgment of the district court is reversed and the cause remanded, with directions to enter a judgment for the plaintiff for the sum of $ 50.

REVERSED....