Jameson v. Bartlett
| Decision Date | 22 January 1902 |
| Docket Number | 10,948 |
| Citation | 88 N.W. 860,63 Neb. 638 |
| Parties | CHARLES C. JAMESON ET AL. v. ARTHUR M. BARTLETT |
| Court | Nebraska Supreme Court |
ERROR from the district court for Dawes county. Tried below before WESTOVER, J. Reversed.
REVERSED AND REMANDED.
Albert W. Crites and E. M. Bartlett, for plaintiffs in error.
Allen G. Fisher, contra.
This was an action by Arthur M. Bartlett against Charles C Jameson, W. H. Reynolds and Andrew A. McFadon upon an injunction bond given under section 255 of the Code of Civil Procedure. As the result of a trial in the district court plaintiff recovered the judgment which defendants are here seeking to reverse.
Before reaching the merits of the controversy a preliminary question must be disposed of. McFadon having died during the pendency of the case in this court, Jameson and Reynolds moved for and obtained a conditional order of revivor, which has been duly served upon Bartlett and the administratrix of McFadon's estate. The administratrix has made no appearance, but the authority of the court to make the conditional order absolute is denied by Bartlett. Section 460 of the statute on the subject of revivor of actions provides that the order of revivor may be made on the motion of the adverse party, or of the representative or successor of the party who died. We know of no provision in the law permitting the substitution of the legal representative or successor of a deceased suitor at the instance of a party having no interest in the litigation adverse to that of the party who died, and we believe no such provision can be found. The administratrix not having asked to be admitted into the case, and the defendant in error having resisted the application to make her a party, we are of opinion that the conditional order should not be permitted to stand. It does not follow however, from this conclusion, that the cause may not proceed to judgment. The statute (Code of Civil Procedure, sec. 456) provides, in substance, that, where one of several plaintiffs or defendants dies, the right of action, if it survive to or against the remaining parties, may be enforced without bringing the representative or successor of the deceased party before the court. The present cause of action, that is, the right to have the judgment of the district court set aside, comes clearly within the provisions of section 456 aforesaid, and may therefore be tried and determined without making the administratrix a party. This is the construction which the supreme court of the United States and other courts have placed upon statutes substantially identical with ours. M'Kinney v. Carroll, 37 U.S. 66, 12 Peters 66, 9 L.Ed. 1002; Moses v. Wooster, 115 U.S. 285, 29 L.Ed. 391, 6 S.Ct. 38; Clarke v. Rippon, 1 B. & Ald. [Eng.] 587; McGregor v. Comstock, 28 N.Y. 237.
The question of procedure being out of the way, we will now consider the case upon the merits. The record with which we have to deal is not easily understood, consisting, as it does, for the most part, of a large mass of court files and other papers thrown together with admirable abandon, but without an index or suggestion in the briefs as to the utility or probative worth of any particular document. We have endeavored, of course, to winnow the evidence and lay hold of the essential facts; but it is a matter of regret, and perhaps a misfortune, that we have not had in this effort the assistance of counsel for either party. The action in which the injunction bond was given was brought by Hart Bros. and others, general creditors of the firm of G. B. Smith & Son, against Arthur M. Bartlett, as sheriff of Dawes county, Nebraska; Leon B. Smith; Leon B. Smith as surviving partner of the firm of G. B. Smith & Son; Leon B. Smith as administrator of the estate of George B. Smith, deceased; Kate L. Smith as administratrix of the estate of Willard P. Bump, deceased; and the First National Bank of Missouri Valley, Iowa,--to enjoin an execution sale of a stock of merchandise, and for other purposes. It appears from the record, as we understand it, that in the summer or fall of 1894 G. B. Smith, of the firm of G. B. Smith & Son, died intestate and that Leon B. Smith, his son and partner, was appointed administrator of his estate, and continued for some time to conduct the partnership business in the city of Chadron. It also appears that Leon B. Smith, as sole surviving partner of the firm of G. B. Smith & Son, confessed two judgments on what purported to be partnership obligations,--one in favor of his mother, Kate L. Smith, and the other in favor of the First National Bank of Missouri Valley, Iowa. Upon these judgments executions were issued, and levied by Bartlett upon the whole of the partnership property. The petition in the action brought by Hart Bros. and other creditors to prevent a sale of this property under the executions, and for general relief, charged that the firm of G. B. Smith & Son was not indebted to either Kate L. Smith or the Missouri Valley Bank, and that the judgments confessed by Leon B. Smith were fraudulent, and were being used to prevent the plaintiffs from obtaining satisfaction of their claims. The relief prayed for, in addition to a preliminary injunction, was that the judgments be declared null and canceled of record; that Leon B. Smith, as administrator, be given possession of the property and directed to hold and administer it as part of his father's estate, and that the individual interest of Leon B. Smith in the property be subjected to the payment of claims in favor of partnership creditors. The defendants answered the petition and traversed nearly all of its material averments, but long before the case came on for trial the sheriff, acting under the direction of Kate L. Smith and the Missouri Valley bank, released the property and restored it to the owner. It was then seized and afterwards sold upon executions and orders of attachment issued at the instance and for the benefit of the plaintiffs in the injunction case. A trial of the case of Hart Bros. et al. against Arthur M. Bartlett et al. resulted in a general finding and judgment in favor of the defendants. Before the trial there was filed a motion to dissolve the injunction, but for some undisclosed reason it was not ruled upon.
The present action was, it is clear, tried by the plaintiff and decided by the jury on the theory that all the services of attorneys for defendants in the original case were rendered in obtaining a dissolution of the injunction, and that the value of such services was therefore recoverable as damages resulting from the wrongful use of the provisional remedy. The law on the subject of damages in actions on injunction bonds is well understood, but the application of it is not always free from difficulty. The rule established by a multitude of decisions is that expenses necessarily incurred in obtaining a dissolution of the injunction may be recovered in an action on the bond, and that reasonable counsel fees are to be regarded as part of such expenses. But it is equally well settled that expenses paid or incurred for professional services in defending the main action are not ordinarily damages which the obligee of the bond has sustained by reason of the injunction. Bolling v Tate, 65 Ala. 417; Elder v. Sabin, 66 Ill. 126; Alexander v. Colcord, 85 Ill. 323; Robertson v. Smith, 129 Ind. 422, 28 N.E. 857; Bullard v. Harkness, 83 Iowa 373, 49 N.W. 855; Aiken v. Leathers, 40 La. Ann. 23, 3 So. 357; Lamb v. Shaw, 43 Minn. 507, 45 N.W. 1134; Hovey v....
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