Housley v. Tobin, 1603

• Decision Date: 07 April 1930
• Docket Number: 1603
• Citation: 286 P. 383,41 Wyo. 419
• Parties: HOUSLEY v. TOBIN, ET AL. [*]
• Court: Wyoming Supreme Court

286 P. 383

41 Wyo. 419

HOUSLEY v. TOBIN, ET AL. ^[*]

No. 1603

Supreme Court of Wyoming

April 7, 1930

APPEAL from District Court, Natrona County; BRYANT S. CROMER, Judge.

Action by Gilbert O. Housley against Ralph S. Tobin and others, to recover damages upon a bond given to secure the issuance of a temporary injunction. From a judgment for defendants plaintiff appeals.

Affirmed.

For the appellant there was a brief and oral argument by W. J Wehrli, of Casper, Wyoming.

The order of injunction was issued by the District Court Commissioner. There was no evidence introduced by defendant at the trial, showing that the judge of the District Court was not absent from the jurisdiction or not disqualified jurisdiction is presumed, the burden being upon the party challenging to show facts defeating jurisdiction of the District Court Commissioner. 15 C. J. 827, 830, 832. It was not necessary to introduce evidence showing jurisdiction. The injunctional order dated March 22, 1928, was not granted or issued until the bond was given; the bond was filed March 23, 1928; the date petition was filed. The order was not made or filed prior to the filing of the petition; motion to review the commissioner's order could not affect its initial validity; the order was dissolved on March 30, 1928, and had been in effect only from March 23rd; there was no occasion for a review of the order by the court, except the initial review there made in proceedings for additional security. The order of March 26, 1928, required additional security and provided that the injunction order should be vacated unless such additional security was given. On March 30th, 1928, injunction was vacated. Court Commissioners have authority to perform chamber business in the absence of the judge or upon his disqualification, as may be prescribed by the laws of the State. Const. Art. 5, Sec. 14. The jurisdiction of commissioners is defined by Sec. 1148, Wyo. C. S. An injunction may be granted at the commencement of the action, by a judge or in his absence, the District Court Commissioner of the County. Witness Wheeler called by defendant, testified that the judge was absent from the county at the time the order was made; lack of jurisdiction to issue the order is not a proper defense to an action for damages upon the injunction bond. 32 C. J. 453; 15 C. J. 844; Littleton v. Burgess, 16 Wyo. 58; 91 P. 832; Robertson v. Smith, 28 N.E. 857, 15 L. R. A. 273; Stevenson v. Miller, 2 Litt. 306, 13 Am. Dec. 271; McClintock v. Parish, 180 P. 689; High on Injunctions, 4th Ed., Vol. II, Sec. 1652. Attorney's fees as part of the damages for reasonable issuance of injunction are recoverable upon the injunction bond. Littleton v. Burgess, supra, 32 C. J. 476; Creek v. McMannus, (Mont.) 32 P. 675. Thomas v. McDonald, (Ia.) 42 N.W. 302; Miles v. Edwards, (Mont.) 9 P. 814.

For the respondents, Ralph S. Tobin, Charles A. Fackler and Frank Carter, there was a brief by Clarence G. Cypreansen and W. B. Holliday, of Casper, Wyoming.

A wrongful issuance of an injunction must be shown to entitle recovery of damages. St. Joseph & Elkhart Co. v. Graham, (Ind.) 74 N.E. 498; 22 Cyc. 1027; Gubbins v. Delaney, 115 N.E. 342. Dismissal of the action in which the injunction was issued by amicable agreements of the parties is not a confession by plaintiff that he had no right to the injunction granted, and does not operate as a judgment to that effect. St. Joseph Co. v. Graham, supra. In this case, the order of dismissal was approved by counsel for defendant. It legally follows that no recovery of attorney fees on the injunction bond would be justified by the record.

For the respondent Federal Surety Company, there was a brief and oral argument by R. R. Rose, of Casper, Wyoming.

An action upon an injunction bond for damages cannot be maintained in the absence of a decision by the court that the injunction ought not to have been granted, or some action is taken by plaintiff in the suit without defendant's consent, which prevented a decision on the point. Consent by the defendant to the dismissal, impliedly waives his right to maintain an action on the bond. St. Joseph Co. v. Graham, (Ind.) 74 N.E. 498; Columbus Co. v. Burke, (Ohio State) 43 N.E. 282, 32 L. R. A. 329. An attorney cannot recover on injunction bond for services rendered in defense of himself. 32 C. J. 477, 478; Wilson v. Webber, 3 Ill.App. 125; Jevene v. Osgood, 57 Ill. 340. As the services rendered by Mr. Wehrli on his own behalf and for Mr. Housley were intermingled, a recovery by Mr. Housley on the bond would, in effect be a recovery by Mr. Wehrli to recover for services rendered by him on his own behalf, as a defendant in the case. The judgment of the lower court should be affirmed.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This proceeding, by direct appeal, was brought to secure a review of a judgment of the District Court of Natrona County in favor of defendants and respondents and against plaintiff and appellant in an action instituted to recover alleged damages upon a bond given to secure the issuance of a temporary injunction at the commencement of another suit. The parties will hereinafter be mentioned generally as they were aligned in the court below or by their respective names.

From the record it appears that Tobin, Fackler and Carter, as plaintiffs, brought a suit for an injunction in the District Court aforesaid, against Gilbert O. Housley, as Sheriff of Natrona County, Wyoming, and also as an individual, joining with him as defendant W. J. Wehrli, as County and Prosecuting Attorney and also as an individual. The object of the suit was to prevent the defendants from trespassing upon certain premises leased by plaintiffs, and from interfering with the business conducted by them there, the business being alleged to be the conducting of dances and the serving of meals for the benefit of an unincorporated society known as the "Natrona Club" and its guests.

The resident district judge being absent at the time, plaintiffs made application to the District Court Commissioner for a temporary injunctional writ. Before granting it, as he testified, that officer inquired of Mr. Wehrli, then the County Attorney of Natrona County, if he wished to argue the case or present any law or evidence, and was answered in the negative; the commissioner then asked if he had a right to issue the injunction and Mr. Wehrli said "Yes"; upon further inquiry as to whether the latter had any objection to its issuance, the commissioner was told "No--Providing you get me a sufficient bond." After some argument concerning the amount of the bond, the commissioner signed an order allowing an injunction as prayed, until the further order of the court, forbidding the defendants in the suit from trespassing upon plaintiffs' premises and from interfering with their business. The order provided the writ should issue only upon "plaintiffs' giving an undertaking as required by law in the sum of $ 500" to be approved by the clerk of the District Court of Natrona County. On March 23, 1928, a bond in the sum fixed, with the three plaintiffs as principals and Federal Surety Company as surety, was approved by the clerk, the condition of the instrument being that the obligors "hereby undertake to said Gilbert O. Housley and William J. Wehrli in the sum of $ 500.00 that said plaintiffs shall pay to defendant all damages which he may sustain if it be finally decided that the injunction ought not to have been granted."

On the next day Mr. Wehrli, as counsel for himself and Housley, filed a motion seeking to have the amount of the bond increased. This motion was heard on March 26, 1928 by the district judge and an order entered directing that a proper bond be filed by the plaintiffs with the clerk of the District Court in the sum of $ 2,000, within twenty-four hours of the hearing, and in default thereof the temporary injunction theretofore granted by the commissioner should be vacated. No such bond was filed and on March 30, 1928, another order was entered by the court dissolving the injunction. Thereafter and on April 18, 1928, counsel for the defendants filed on behalf of himself a general demurrer to plaintiffs' petition in the injunction suit and on behalf of Housley a motion for an order requiring plaintiffs to make their petition more definite and certain in several respects. Nothing more appears to have been done in the case until January 3, 1929, when counsel for plaintiffs was served with a notice of hearing upon this motion and demurrer for the 5th of that month. On the day thus set, upon motion of the plaintiffs, the court entered an order dismissing the injunction suit "with prejudice, costs to be paid by the plaintiffs."

The present action was instituted March 2, 1929, by plaintiff Housley, as heretofore indicated generally, to recover alleged damages on account of the institution of the injunction suit aforesaid and the issuance of the temporary writ against him. The only damages claimed is the sum of $ 250 attorney's fees, which plaintiff became obligated to pay Wehrli, his counsel, for the defense of the action. Incidentally it also appears that the latter brought a similar action for a similar amount in his own behalf. Both actions were consolidated for a trial, which resulted in judgments that neither plaintiff take anything. Housley alone has appealed.

The general finding and judgment of the trial court in favor of the defendants is assigned as error on the ground of being contrary to law and unsupported by the evidence. Complaint is also made that the court erred in declining to receive in evidence certain papers filed in the injunction suit, viz The demurrer and motion to make more definite and certain...