Ford v. Loomis

• Decision Date: 13 June 1883
• Citation: 16 N.W. 193,62 Iowa 586
• Parties: FORD ET AL. v. LOOMIS ET AL
• Court: Iowa Supreme Court

16 N.W. 193

62 Iowa 586

FORD ET AL. v. LOOMIS ET AL

Supreme Court of Iowa, Des Moines

June 13, 1883

Appeal from Delaware Circuit Court.

THE defendant, Loomis, obtained an injunction against the plaintiffs, J. W. Ford and Geo. Ford. Afterward the action was dismissed by him. This action is brought upon the injunction bond to recover for damages alleged to have been sustained by reason of the injunction, and also for attorney's fees alleged to have been paid. There was a trial to the court, and judgment was rendered for the plaintiffs. The defendants appeal.

REVERSED.

A. S Blair, for appellants.

Bronson & Leroy and E. M. Carr, for appellees.

OPINION

ADAMS J.

The controversy out of which the injunction suit grew arose in respect to a partition wall. The plaintiffs are the owners of a certain lot in the city of Manchester, and the defendant Loomis, is the owner of the lot adjacent thereto on the south. Loomis improved his lot several years ago by the erection of a building, the first story of which is owned and occupied by him, and the second story is owned and occupied by the city as a town hall. The wall in question was built by Loomis, one-half upon his own lot, and one-half upon the Ford lot, then owned by one Tate. Half of the cost of the wall was paid by Tate. In 1881, the plaintiffs, having purchased of Tate, erected a stone building two stories high, each story being somewhat higher than the corresponding story of the Loomis building. In erecting their building, they joined on to the partition wall in question. In joining on, they commenced making changes in the front of the wall. They cut into it and removed alternate bricks, and inserted cut stone extending part way across. Loomis regarded this change as an injury to the appearance of the wall, and an infringement upon his rights, and so notified the Fords, and asked them to desist from changing the style of architecture. They did not desist, but, apprehending an injunction, pushed forward their work by working extra hours. Their aim was to get their front wall constructed above Loomis' story before he could enjoin them. Seeing that they could not succeed in getting the whole of their front wall thus constructed, they neglected a part of it, and devoted themselves to that part next to Loomis. Whether they succeeded, before the injunction was served, in getting their wall next to him higher than his story, is a question upon which the parties are not agreed, but is one upon which the appellants claim that there is a conflict of evidence. After the injunction was served, the appellees delayed a little in some portion of their work. They completed their front wall, however, in a short time, and did not, so far as the evidence shows, make any change in their plans. They did shorten a galvanized iron cornice which was put over the first story, but it was left long enough to extend to the middle of the partition wall, and, according to the testimony of the plaintiffs, which is undisputed, they shortened it to correct a mistake and make it conform to the original plan. The appellees proceeded to the completion of their building before the case could be tried, and, at the first term of court, Loomis dismissed his action. This action was then brought by the appellees on the injunction bond, and a recovery was allowed in the sum of $ 132, to-wit, $ 70 as attorney's fees, $ 50 for delay in mason work, and $ 12 for rental value of building during time of delay.

The appellants insist that the undisputed evidence shows that the appellees were not in fact delayed, and were in no way injuriously affected by the injunction, and farther, that, as the injunction was not dissolved on motion, nor upon a hearing upon the merits, the appellees are not entitled to attorney's fees.

Whatever conflict of authority there may have been, it may now be regarded as the settled rule, especially in this state, that an attorney's fee is allowable where an injunction is dissolved on motion. Behrens v. McKenzie, 23 Iowa 333; Corcoran v. Judson, 24 N.Y. 106; Edwards v Bodine, 11 Paige Ch. 223. So, too, it is allowable if the injunction is dissolved on final hearing, if the injunction is the only relief sought. Reece v. Northway, 58 Iowa 187, 12 N.W. 258. Possibly it should be allowed in some cases where the injunction is not dissolved, either on motion or final hearing, as where the plaintiff in the injunction suit wrongfully enjoins the defendant for a time, and the latter employs an attorney who renders services, and afterward, and before there is any determination, the action upon the plaintiff's own motion is dismissed. But in this case the appellants contend that the injunction, so far as any question before the court is concerned, proved to be abortive, the appellees having rendered it so by their diligence in consummating the acts sought to be prevented, before the writ could be served. To determine whether this is so, we must look into the writ, and see what acts it purports to enjoin, and then into the evidence, to see whether those acts had already been done. The acts which the writ purports to enjoin are the "injuring, defacing, marring, or changing the style of architecture of any portion of the front wall of the store building of said L. A. Loomis, * * * by removing any portion of the wall of said building and inserting in lien thereof cut stones, or other material, differing from the original material of the walls of said building, or making in the walls of said building projections, cornices, or other architectural work, changing the original character of the same." Loomis' store was one story high, and the acts sought to be enjoined pertained to the partition wall one story high, and to the cornice designed to go over the appellees' first story. Now, how much of this had been done when the writ was first served? The cornice had not been put on, but it appears to us that the other acts sought to be enjoined had been done. That part against Loomis was built up in the exercise of extraordinary diligence, and in advance of the other parts. The foreman of the appellees' work, one Trenchard, testified as follows: "When Ford brothers understood that Mr. Loomis was to serve an injunction on them, they got me up, and got my force out, and got the wall above Loomis' store, and laid the brick there in the night before the injunction was served. They got it laid some three or four courses above the city hall floor, and above Loomis' part. The brick was laid up on the corners as far as it touched Loomis' building. The balance of the front wall was left open. But so far as it touched Loomis' building it was run up above his building. It was above the town hall floor. We were out before daylight in order to get the masons at work. I heard the Fords say, when they heard the train...