Ferrell v. Coeur d'Alene & St. Joe Transp. Co., Ltd.

• Decision Date: 12 May 1916
• Court: Idaho Supreme Court
• Parties: W. W. FERRELL, A. C. TAYLOR and DAN LESTER, Respondents, v. COEUR D'ALENE & ST. JOE TRANSPORTATION CO., LTD., a Corporation, WILLIAM DOLLAR and EZRA R. WHITLA, Appellants

157 P. 946

29 Idaho 118

W. W. FERRELL, A. C. TAYLOR and DAN LESTER, Respondents, v. COEUR D'ALENE & ST. JOE TRANSPORTATION CO., LTD., a Corporation, WILLIAM DOLLAR and EZRA R. WHITLA, Appellants

Supreme Court of Idaho

May 12, 1916

TEMPORARY INJUNCTION-RESISTANCE-TRIAL ON MERITS-BOND ACTION TO RECOVER COUNSEL FEES - SERVICES RENDERED PROCURING DISSOLUTION-DAMAGES-INSTRUCTIONS-EVIDENCE INSUFFICIENT TO SUSTAIN JUDGMENT.

1. Where an action is brought upon an injunction bond for the recovery of counsel fees for the alleged wrongful issuance of an injunction, pendente lite, and the complaint fails to allege that after the issuance of the injunction an appeal was taken from the order granting it, or that a motion was made in the trial court to dissolve it, and it affirmatively appears that the injunction was not the primary and principal relief sought, and that no move was made against the injunction, but the action was tried out on its merits in the trial court and judgment rendered and entered thereon in favor of plaintiffs, from which judgment an appeal was taken to the supreme court, where the judgment was reversed and the cause remanded, and thereafter the action was dismissed and the injunction dissolved, the complaint fails to state a cause of action for the recovery of counsel fees against the sureties upon such injunction bond given under an order of the court as a condition precedent to the issuance of the temporary injunction.

2. Where an injunction is granted pendente lite, it being only ancillary to the relief sought, and no motion is made to dissolve it and obtain thereon a decision of the court, but instead, the defendant prefers to defeat the action, he waives his right to recover counsel fees from the sureties on the injunction bond for services rendered in connection with the trial of the cause.

3. Reasonable compensation paid or contracted as counsel fees in procuring a dissolution of an injunction may be recovered in an action upon the injunction bond, but the compensation thus allowed must be limited to services rendered in procuring the dissolution.

4. The allowance of counsel fees as damages on dissolving an injunction is based upon the fact that defendant has been compelled to employ aid in ridding himself of an unjust restriction which has been placed upon him by the action of the plaintiff, and is restricted to such counsel fees as are necessarily incurred in procuring the dissolution of the injunction.

5. Counsel fees cannot be recovered for services rendered in opposition to a show-cause order, since such services are by virtue of the order to show cause, and not by virtue of the injunction.

6. Held, that it was reversible error for the trial court to permit witnesses to testify what in their opinion would be a reasonable attorney's fee for services rendered other than such as were rendered in securing a dissolution of the temporary injunction.

7. Held, that the court erred in giving and in refusing to give certain instructions.

8. Held, that the evidence was insufficient to sustain the judgment.

[As to attorneys' fees on dissolution of injunction, see notes in 77 Am.Dec. 158; Ann.Cas. 1912D, 715]

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.

Action to recover damages and counsel fees on an injunction bond. Judgment for plaintiffs. Reversed.

Judgment reversed. Cause remanded, with instructions. Costs awarded in favor of appellants.

Elder &amp Elder, for Appellants.

It does not follow that the temporary injunction was wrongfully issued simply because the cause was finally decided in favor of the defendants. If it is shown by the complaint that the temporary injunction was not appealed from and no move was made against it, and that the cause was tried out on the merits, then no action would lie on the injunction bond, and the complaint fails to state a cause of action. (Curtiss v. Bachman, 110 Cal. 433, 52 Am. St. 111, 42 P. 910; Donahue v. Johnson, 9 Wash. 187, 37 P. 322.)

The only damage or attorney's fees which may be allowed are such as is contemplated by the contract of the parties, and then the damages must be confined to that damage caused by the temporary injunction and attorney's fees in seeking to dissolve said injunction. (Mitchell v. Hawley, 79 Cal. 301, 21 P. 833; Creek v. McManus, 17 Mont 445, 43 P. 497; Church v. Baker, 18 Colo. App. 369 71 P. 888; Tabor v. Clark, 15 Colo. 434, 25 P. 181.)

In order for a defendant to collect attorney's fees on a bond for the dissolution of the injunction, it is necessary that he show that the services rendered were performed in securing the dissolution of the injunction. (Miller v. Donovan, 13 Idaho 735, 92 P. 991, 13 Ann. Cas. 259.)

Counsel fees rendered in resisting the motion for preliminary injunction are not within the terms of the undertaking, since they are not expenses made necessary by reason of the injunction. (Sweet v. Mowry, 71 Hun, 381, 25 N.Y.S. 32; Whiteside v. Noyac Cottage Assn., 84 Hun, 555, 32 N.Y.S. 724.)

McFarland & McFarland, for Respondents.

The test of the condition of the bond is whether it shall finally appear, at the conclusion of the litigation, that plaintiff was not entitled to the injunction. Any other construction takes the whole value and protection away from the bond.

The supreme court of Idaho has examined the question of allowance of attorney's fees in injunction cases and upon injunction bonds. The same objections that are urged against the recovery of attorney's fees upon the injunction bond in this case were urged against the recovery of attorney's fees in the case of Miller v. Donovan, 13 Idaho 735, 92 P. 991, 13 Ann. Cas. 259; 1 Spelling on Injunctions, sec. 953; Creek v. McManus, 13 Mont. 152, 32 P. 675; Anderson v. Provident Life & Trust Co., 26 Wash. 192, 66 P. 415; Thomas v. McDaneld, 77 Iowa 299, 42 N.W. 301.

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

On July 3, 1911, the Coeur d'Alene & St. Joe Transportation Company, Ltd., a corporation, commenced an action in the district court against W. W. Ferrell, A. C. Taylor and Dan Lester, and, after due notice to the defendants and after a hearing had, procured, on the filing of a bond in the sum of $ 1,000, the issuance of an injunction pendente lite enjoining them from landing the steamboat "Ferrell" at the electric dock at Coeur d'Alene. The cause was tried on its merits on or about December 29, 1911, and judgment was entered in favor of the Coeur d'Alene & St. Joe Transportation Company, Ltd., and the temporary injunction made permanent. The order granting the temporary injunction was never appealed from. But an appeal was taken from the judgment. The judgment was reversed by this court, and the cause remanded with instructions to the trial court to take further proceedings, which finally resulted in the action being dismissed and the permanent injunction dissolved in the district court.

This action is brought upon the injunction bond which was given by appellants, conditionally, upon the issuance of the temporary injunction.

Respondents allege in their complaint that they were compelled to pay or contracted to pay their attorneys $ 1,000 for legal services rendered in connection with the dissolution of the injunction pendente lite wrongfully issued in the former action, and that they also suffered damages in the sum of $ 3,100 in consequence of being deprived of the use of the electric dock at Coeur d'Alene for landing the steamboat "Ferrell," and thereby prevented from making traffic connections with the Spokane & Inland Empire Railroad Company, and carrying on their business as common carriers of passengers and freight on Lake Coeur d'Alene.

Appellants in their answer deny that the respondents paid or agreed to pay their attorneys $ 1,000 or any amount for legal services rendered in connection with the dissolution of the injunction pendente lite; and in substance affirmatively allege that whatever services were rendered by counsel for respondents in the original action were in resisting the show cause order and in the trial of the cause on its merits in the district and supreme courts; that no move was made by respondents or their counsel for the purpose of procuring a dissolution of the injunction pendente lite; but that the same was dissolved as a result of a reversal of the judgment by the supreme court.

This cause was tried to a jury upon the issues made by the pleadings, and a judgment in the sum of $ 650 was entered upon the verdict. This appeal is from the judgment and from an order of the trial court denying appellants' motion for a new trial.

Appellants insist that the evidence discloses the fact that no move of any kind was made against the injunction pendente lite, and that all services performed by respondents' attorneys with relation thereto were in resisting the issuance of the temporary injunction and in trying the case on its merits in the district court, and in prosecuting an appeal to the supreme court from the judgment entered in the district court. They also contend that it appears from the record that W. W. Ferrell leased the steamboat "Ferrell" to respondents Lester and Taylor for the stipulated sum of $ 100 per month, and that he had no interest in said boat, and therefore suffered no loss by reason of the issuance of the temporary injunction; and further, that the evidence fails to show that respondents Lester and Taylor were damaged. Respondents, on the other hand, contend that the evidence shows that by reason of the issuance of the temporary injunction Taylor and Lester were compelled to cease the operation of the steamboat "Ferrell" and to surrender the same up to respondent Ferrell, who, by reason...