Hecht Bros. Clothing Co. v. Walker

• Decision Date: 02 February 1926
• Docket Number: No. 19206.,19206.
• Citation: 279 S.W. 1059
• Parties: HECHT BROS. CLOTHING CO. v. WALKER et al.
• Court: Missouri Court of Appeals

279 S.W. 1059

HECHT BROS. CLOTHING CO. v. WALKER et al.

No. 19206.

St. Louis Court of Appeals. Missouri.

February 2, 1926.

Rehearing Denied February 23, 1926.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Suit by the Hecht Bros. Clothing Company against Dick Walker and others for injunction. Dismissed and temporary injunction dissolved. Defendant moved to assess damages on injunction bond. From an order overruling motion to set aside an order overruling the motion to assess damages, defendants appeal. Reversed and remanded.

Walter M. Hezel, Jas. T. Roberts, and Edward W. Foristel, all of St. Louis, for appellants.

Jones, Rocker, Sullivan & Angert, of St. Louis, for respondent.

BENNIOK, C.

This proceeding was instituted in the circuit court of the city of St. Louis, Mo., for the assessment of damages on two injunction bonds. After a hearing, both of said motions were overruled, as were also defendants' motions to set aside the order overruling same. From the latter order defendants have appealed.

The main action was an injunction suit in which plaintiff sought to enjoin defendants from interfering with its employees, actual or prospective, during the course of a labor dispute at plaintiff's factory. On August 4, 1922, a restraining order and order to show cause was issued by the court, conditioned upon the plaintiff giving a bond in the sum of $1,000 that it would abide the decision rendered therein and pay all damages and costs that should be adjudged against it, if such restraining order should be dissolved. On September 20, 1922, a temporary injunction was granted upon the giving of a second bond in the sum of $1,000.

On November 15, 1922, defendants jointly filed their amended answer, and, the case coming on to be heard, on December 29, and during the December term, 1922, the court rendered its judgment as follows:

"Now at this day, this cause coming on for a hearing upon the merits, come the parties hereto, by their respective attorneys, and thereupon the cause is submitted to the court upon the pleadings and evidence adduced, and the court, having heard and duly considered the same, and being fully advised of and concerning the premises, doth find in favor of the defendants and cloth find that the plaintiff is not entitled to the temporary injunction as prayed for in their petition. Therefore it is considered, adjudged, and decreed by the court that the temporary injunction, granted and issued herein September 20, 1922, be, and the same is hereby, dissolved, and plaintiff's bill dismissed at the costs of the plaintiff, for which let execution issue."

On February 2, 1923, the defendants filed motions for damages on the injunction bonds of August 4, 1922, and September 20, 1922, alleging that, on account of the issuance of the restraining order and the temporary injunction, defendants had become obligated in the sum of $1,000 for attorneys' fees in each case, and praying the court to fix and assess their damages at the sum of $1,000 in each instance.

A hearing was had before the court, without a jury, upon both motions for the assessment of damages, and evidence was introduced upon behalf of the defendants to the effect that the reasonable value of attorneys' fees from the date of the issuance of the restraining order to September 20, when the temporary injunction was issued, was from $1,500 to $2,000, and from September 20 until December 29, when the final order was made, $1,000.

At the close of all the evidence, defendants requested the court to declare the law to be that, under tie pleadings, the evidence on the motions, and the record, defendants were entitled to have the court assess damages upon both injunction bonds, which declaration of law the court refused to give.

On August 18, 1924, the court overruled defendants' motions for the assessment of damages, and upon August 22, 1924, defendants filed their motions to set aside the order of the court overruling their motions for assessment of damages on said bonds. On August 30, 1924, both of said motions to set aside the court's order of August 18 were overruled and a rehearing denied, and upon October 4. 1924, an appeal was duly allowed to this court.

Both of defendants' assignments of error have to do with the court's refusal to declare the law to be that they were entitled to recover damages on the bond given at the time of the issuance of the temporary restraining order as well as on the bond upon which the temporary injunction was conditioned, and accordingly both may be considered together.

The only damages sought to have assessed were the reasonable expenses for attorneys' fees incurred by defendants in obtaining the dissolution of the temporary restraining order and the temporary injunction. It has often been held that reasonable attorneys' fees for services rendered in the proceedings leveled at getting rid of and releasing defendants from the restrictions of a restraining order or an injunction are a proper element of damages to be considered in assessing damages on an injunction bond. Albers Commission Co. v. Spencer, 139 S. W. 321, 236 Mo. 608, Ann. Cas. 1912D, 705; Akin v. Rice, 117 S. W. 655, 137 Mo. App. 147; Neiser v. Thomas, 46 Mo. App. 47; Grover v. Kirk, 173 S. W. 90, 187 Mo. App. 720; Albers Commission Co. v. Milliken, 107 S. W. 1056, 183 Mo. App. 662; Joplin Gas Co. v. City of Joplin, 167 S. W....