Darling v. McBride

• Citation: 86 Neb. 481,125 N.W. 1088
• Decision Date: 09 April 1910
• Docket Number: No. 15,924.,15,924.
• Parties: DARLING v. MCBRIDE ET AL.
• Court: Nebraska Supreme Court

86 Neb. 481
125 N.W. 1088

DARLING
v.
MCBRIDE ET AL.

No. 15,924.

Supreme Court of Nebraska.

April 9, 1910.

Syllabus by the Court.

The necessary and reasonable expenses for attorney's fees incurred in procuring the dissolution of an injunction wrongfully issued are recoverable as an element of damages. But when the right to an injunction is ancillary and not the main issue in the case, such damages are limited to the expenses incurred in securing the dissolution, as distinguished from the expenses incurred in the trial of the principal issues involved. Trester v. Pike, 60 Neb. 510, 83 N. W. 676.

Appeal from District Court, Boone County; Hanna, Judge.

Action by Frank Darling against Zaidee M. McBride and others. Judgment of dismissal, and plaintiff appeals. Reversed and remanded, with directions.

Reese, C. J., and Sedgwick and Fawcett, JJ., dissenting.

[125 N.W. 1089]

H. C. Vail, for appellant.

Frank D. Williams, for appellees.

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thus advertised were her individual property, and that other articles were the property of defendant, and that he had withdrawn from deposit in a bank certain money received by him from the sale of property belonging to her.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 25th to August 30th, 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 recovery of attorney's...