Farasy v. Hindert

• Decision Date: 07 December 1937
• Docket Number: No. 24151.,24151.
• Citation: 110 S.W.2d 785
• Parties: FARASY et al. v. HINDERT et al.
• Court: Missouri Court of Appeals

110 S.W.2d 785

FARASY et al. v. HINDERT et al.

No. 24151.

St. Louis Court of Appeals. Missouri.

December 7, 1937.

Appeal from St. Louis Circuit Court; James M. Douglas, Judge.

"Not to be published in State Reports."

Suit by V. Farasy and another against Leonard J. Hindert and others, wherein plaintiffs were granted a temporary injunction upon plaintiffs giving a surety bond. Judgment having been entered for defendants, defendants moved to assess damages on the injunction bond. Judgment granting defendants' motion, and plaintiffs appeal.

Affirmed.

Villiers Farasy, of St. Louis, and Jesse L. England, of Kirkwood, for appellants.

Block & Block, Frank X. Hiemenz, and Albert F. Muench, all of St. Louis, for respondents.

McCULLEN, Judge.

This is an appeal from the action of the circuit court of the city of St. Louis in assessing damages on an injunction bond given by appellants, who will be referred to herein as plaintiffs, in a suit brought by them in said court against respondents, who will be referred to herein as defendants.

The petition of plaintiffs in said suit alleged, among other things, conspiracy and misrepresentations on the part of defendants to cheat and defraud plaintiffs in connection with certain real estate transactions. Plaintiffs also alleged the nonliability of plaintiffs on two promissory notes and the deed of trust securing them, executed by plaintiffs as a part of said transactions, because of want or failure of consideration therefor. Plaintiffs prayed for the cancellation of said notes and deed of trust, as well as damages, both actual and punitive. Plaintiffs also prayed that, pending the adjudication of the issues, defendant Albert F. Muench, trustee, be restrained and enjoined from proceeding with the sale of the real estate mentioned therein which had been advertised by him to be sold, and that on final hearing such order restraining and enjoining said trustee be made permanent, and for such other orders and relief as the court might deem in equity meet and proper.

The deed of trust, foreclosure of which was sought to be enjoined, was executed by plaintiffs to the Title Guaranty Trust Company, a corporation, trustee for defendants Charles Boresi and Ida Boresi, his wife, on August 12, 1929, and was duly recorded in the office of the recorder of deeds for the city of St. Louis on August 13, 1929. Defendant Albert M. Muench, trustee, was the duly appointed successor trustee in said deed of trust by appointment made by the circuit court of the city of St. Louis.

A temporary injunction was granted by the circuit court upon plaintiffs' giving a bond in the sum of $350 with the United States Fidelity & Guaranty Company as surety. Thereafter, defendants filed a motion to dissolve the temporary injunction, which motion was never taken up or tried separately but was decided and disposed of on final hearing on the merits of the cause by the trial court entering a finding and judgment for defendants and dismissing plaintiffs' petition. Plaintiffs appealed from that judgment to the Supreme Court of Missouri where the judgment was affirmed. See Farasy et al. v. Hindert et al., 82 S.W. 2d 573.

Defendants thereafter took up in the circuit court their motion to assess damages on the injunction bond which motion they had theretofore filed. There was a hearing on said motion before the court without a jury, a jury having been waived, after which the court entered a finding and judgment for the defendants for the sum of $350, the amount of the bond, the same to be satisfied upon the payment of $256.10, $200 of which was allowed as attorneys fees and $56.10 for advertising expenses. Plaintiffs filed a motion for a new trial. The surety company did not file such a motion, and we are informed in defendants' brief that the surety company satisfied the judgment of record. Plaintiffs' motion for a new trial having been overruled, they have duly appealed to this court.

The contention of plaintiffs which they have stated in various forms in their brief is that no damages whatsoever should have been allowed by the trial court against plaintiffs on the injunction bond for the reason that the preliminary injunction was only auxiliary to the principal object of their action, which was the recovery of pecuniary damages; that the liability of defendants for attorney's fees was incurred by defendants in defending the action generally and that the dissolution of the temporary injunction was merely incidental to that result. Therefore, they argue, the assessment of attorney's fees as damages against them was erroneous.

Defendants' motion to assess damages on the injunction bond alleges, among other things, the employment by defendants of Frank X. Hiemenz as their attorney to defend the action "and particularly to secure the dissolution of the said temporary injunction," and that defendants had become obligated to said attorney for attorney's fees in the sum of $500 for services rendered. The motion also alleged that defendants had to pay out costs and incidental expenses in the sum of $200, making a total of $700, which sum they prayed the court to assess as damages against plaintiffs and their sureties on the bond.

At the hearing on the motion to assess damages on the bond, defendant Muench, trustee, who was the only one of the defendants to testify, gave testimony to the effect that he had started to prepare foreclosure proceedings on a part of the property in question and had inserted the usual ad for that purpose in the Daily Record, but before the date of the foreclosure he was served with an order of the court to show cause why the temporary injunction should not be issued, to which order he filed a return; that, after a hearing on that order, the temporary injunction was granted upon plaintiffs giving the $350 bond; that the bond was given and approved by the circuit court; that he filed the motion to dissolve the temporary injunction, which was not taken up independently; that the cause was taken up on the merits; that he made the usual preparations in connection with the defense in the matter and with the other defendants employed Frank X. Hiemenz as counsel for all the defendants; that he (Muench) did most of what he called the "spade work" but that all the moves that were made in the case were taken up with Mr. Hiemenz, counsel for the defendants; that witness drew up the motion to assess damages on the injunction bond but that he submitted the papers to Mr. Hiemenz who checked them and O.K.'d them, after which witness filed them. Muench further testified that he had incurred $56.10 as advertising expenses which had not been paid; that he tried the cause in court and that Hiemenz never appeared in court; that the reasonable value of the services rendered on behalf of Hiemenz and the services he rendered in connection with Hiemenz up to the time the appeal was taken in the main cause would be $500.

Frank X. Hiemenz testified for defendants to the effect that he was the defendants' attorney of record; that Muench reported each step in the case for his (Hiemenz') approval; that he made no appearances in court because "Mr. Muench relieves me of all of those little things"; that "I should say $500.00 would be a reasonable fee."

John O. Weirich, an attorney at law, testified for defendants that he was in court and listened to Mr. Muench testifying as to his work done in the case and would say that his (Muench's) services would be worth $500; that he could not segregate the fees for services rendered on the dissolution of the injunction from those...