Holthaus v. Hart

• Citation: 9 Mo.App. 1
• Parties: ARNOLD HOLTHAUS ET AL., Appellants, v. HENRY N. HART ET AL., Respondents.
• Decision Date: 20 April 1880
• Court: Missouri Court of Appeals

9 Mo.App. 1

ARNOLD HOLTHAUS ET AL., Appellants, v. HENRY N. HART ET AL., Respondents.

Court of Appeals of Missouri, St. Louis.

April 20, 1880

1. Attorney's fees and other expenses incurred by reason of injunction proceedings may, on dissolution of the injunction be recovered as damages, whether they have been paid or not.

2. Where a sale under a deed of trust upon premises worth less than the amount secured is enjoined, the jury, in assessing damages, may take into consideration rents collected pending the injunction, and thus lost to the mortgagee, where it appears that the loss of these rents is an actual damage to the mortgagee.

APPEAL from the St. Louis Circuit Court, WICKHAM, J.

Affirmed.

G. H HOSPES, for the appellants.

HENRY N. HART, for the respondents.

OPINION

BAKEWELL J.

Plaintiffs obtained a restraining order enjoining defendant from foreclosing a deed of trust upon property in St. Louis to secure a note owned by defendant Zimmer. The proceedings in the present case are upon a motion filed by Zimmer for assessment of damages sustained by him in consequence of the injunction. The bond was for $2,500, executed by Holthaus and his sureties. The restraining order was granted on the 30th of July, 1878, and in March, 1879, the injunction was dissolved on motion, by consent of parties. The note secured by the deed of trust was dated the 14th of March, 1861, and was payable one year after date, with interest at ten per cent. The premises described in the deed were shown to be worth $5,500, and not to have depreciated during the time the order was in force; there was evidence that they rented at from fifty to eighty dollars a month. It was shown that the costs of advertising were $32.65; that the attorney's fee was worth from $250 to $350; that Zimmer lived in Jefferson County, forty miles from St. Louis, and had been compelled, several times, to leave his business and come to St. Louis in consequence of the injunction.

The verdict was as follows: " We, the jury, find for John Zimmer, and assess the damages as follows: Loss sustained by injunction, $275; lawyer's fee, $200; advertising, $32.46; making total damages, $507.46." Judgment was entered accordingly against the parties to the bond.

It is objected by appellants that there is no allegation in the motion that the principal or sureties have not paid the damages, nor that the order of dissolution was final, nor that Zimmer had paid the costs of sale, nor that the value of the property had depreciated, or the security diminished. It is further objected that the names of the parties to the bond are not set out in the motion, nor the condition of the bond, and that the motion does not state that Zimmer has been compelled to expend anything. There is nothing in these objections.

It is contended by appellants that the verdict was excessive, and not warranted by the evidence.

As to the attorney's fee and printer's bill, the verdict was not excessive. It was not necessary to show that they had been paid. Zimmer necessarily employed an attorney, and was liable for his reasonable attorney's fee; and the printer's fee, as part of the costs of sale, is a charge upon the mortgaged premises by the terms of the deed of trust.

The court instructed that the jury, in assessing damages, must " not consider the actual, or any rent that was, or might have been collected from the occupants of said premises during the continuance of the injunction." If this was error, it is error of which the appellants cannot complain....