Kelder v. Dale

• Decision Date: 05 May 1958
• Docket Number: 22748,Nos. 22673,s. 22673
• Citation: 313 S.W.2d 59
• Parties: C. C. KELDER and Sherman C. Hall, Respondents, v. Mayor Stanley I. DALE, Harry Kurtz, Robert Graff and William A. Lorenz, Members of the Board of Public Works of the City of St. Joseph, Missouri, Lee B. Irwin, Comptroller of the City of St. Joseph, Missouri, Charles Beadnall, Doing Business as Beadnall Electric Company, Appellant.
• Court: Missouri Court of Appeals

Page 59

313 S.W.2d 59

C. C. KELDER and Sherman C. Hall, Respondents, v. Mayor Stanley I. DALE, Harry Kurtz, Robert Graff and William A. Lorenz, Members of the Board of Public Works of the City of St. Joseph, Missouri, Lee B. Irwin, Comptroller of the City of St. Joseph, Missouri, Charles Beadnall, Doing Business as Beadnall Electric Company, Appellant.

Nos. 22673, 22748.

Kansas City Court of Appeals, Missouri.

May 5, 1958.

Whitney W. Potter, St. Joseph, for appellants, Mayor Stanley I. Dale, Harry Kurtz, Robert Graff and William A. Lorenz, Members of Board of Public Works of City of St. Joseph, Missouri, Lee B. Irwin, Comptroller of City of St. Joseph, Missouri.

John Newhart, Savannah, for appellant, Charles Beadnall, d/b/a Beadnall Electric Co.

Miner & Martin, Hugh A. Miner, St. Joseph, for respondents.

MAUGHMER, Commissioner.

Plaintiffs (respondents) sought and secured a temporary injunction against the defendants (appellants). Thirteen days later the injunction was dissolved and the cause dismissed, all parties agreeing that the issue had become moot. Defendants thereafter moved for allowance of their attorney fees as damages. These motions were denied and defendants have duly appealed.

The defendants herein may properly be divided into two groups. These two groups were represented by different attorneys, filed separate answers and motions, occupied somewhat different positions and filed separate briefs on appeal, although by stipulation both appeals were consolidated for hearing, argument and disposition. One group consists of the City of St. Joseph, its Mayor, members of the Board of Public Works and its Comptroller. This group will be referred to hereinafter as the City and City Officials. In the second group is the defendant Charles Beadnall, d/b/a Beadnall Electric Company. This defendant will be designated herein as Beadnall.

Plaintiffs on May 23, 1956, as St. Joseph residents, taxpayers and as representatives of a class of such, filed their petition and were granted a temporary injunction, restraining all defendants from entering into a certain street lighting contract on behalf of the City of St. Joseph with the defendant Beadnall. The petition generally alleged that the proposed contract was illegal, and alleged specific facts upon which such conclusion was founded. Plaintiffs' bond in the principal sum of $1,000 was conditioned that plaintiffs would 'abide the decision in this cause and pay all sums of money, damages and costs that shall be adjudged against them if the restraining order or temporary injunction shall be dissolved * * *'. June 5, 1956, was the date set for final hearing. On May 29, 1956, defendant City and City Officials filed answer, stating therein that all bids for the street lighting program had been rejected and that 'inasmuch as the contract which is the subject of this lawsuit has not and will not be awarded, signed or executed, no controversy remains and nothing is left for this court to pass upon.' On June 5, 1956, plaintiffs filed their written 'Motion to Dismiss without prejudice' as to defendant Beadnall. On this same day, counsel for all parties, in open court, stated that the issues presented by plaintiffs' petition and upon which the injunction had been issued had become moot by reason of the action of defendant City and City Officials in abandoning the proposed contract and joined in requesting that the injunction be dissolved and the suit dismissed.

Thereafter, but on this same day, the Court dissolved the temporary injunction, dismissed the cause and entered formal judgment that defendant Beadnall have and recover his costs from plaintiffs. Thereupon the defendant City and City Officials filed a motion for allowance of a $500 attorney fee for their privately employed lawyer (the City Counselor also appeared for them). The defendant Beadnall filed a like motion. He, too, asked for damages in the sum of $500, which he alleged he had contracted to pay his lawyer for services herein. Some testimony was heard and the defendant Beadnall testified that he had agreed to pay $500. No party at any time requested a jury for any purpose and, therefore, all matters were properly adjudicated by the Court. The Court, at a later date, overruled both of these motions for damages, covering attorney fees and each group of defendants has duly appealed. The actions of the trial court in denying each of these claims for damages for attorney fees are the only questions presented on this appeal.

The defendant City and City Officials contend that in an injunction proceeding where the questions involved have become moot and the injunction is dissolved, that the defendants are entitled to an allowance for attorney fees. The defendant Beadnall in his brief joined with and adopted this contention and then asserted separately that the defendant Beadnall was entitled to such an allowance.

Section 526.200 V.A.M.S.1949, Injunctions, provides: 'Upon the dissolution of an injunction, in whole or in part, damages shall be assessed by a jury, or if neither party require a jury, by the court; * * *'. There is abundant authority and it is the rule is Missouri that a defendant's reasonable attorney fees rendered in the proceedings directed at getting rid of an injunction and releasing defendant from its restraint is a proper element of damages to be considered in assessing damages on an injunction bond. Waterman v. Waterman, Mo.App., 210 S.W.2d 723, loc. cit. 726, and cases cited.

It is also the law in this state that damages, including attorney fees, are allowable only in those instances where the injunction was improvidently granted, was wrongful in its inception or at least was continued owing to some wrong on the part of the plaintiff. The underlying principle for allowance of attorney fees is that defendant has been compelled to employ such aid in getting rid of an unjust restriction forced upon him by the act or acts of plaintiff. We cite the following Missouri cases which both establish and support such pronouncement. In Hecht Bros. Clothing Co. v. Walker, 279 S.W. 1059, loc. cit. 1060, the St. Louis Court of Appeals said: 'Whether defendants were entitled to have expenses incurred by them for attorney's fees assessed as damages on the two bonds depends, of course, upon whether or not the temporary restraining order of August 4, 1922, and the temporary injunction of September 20, 1922, were providently granted'. (Italics supplied.)

In Pierce v. Campbell, 217 Mo.App. 179, 274 S.W. 875, loc. cit. 876, the same appellate court said it this way:

'In this state, as early as Buford v. Keokuk Northern Line Packet Co., 3 Mo.App. 159, loc. cit. 172, it was ruled that the principle upon which counsel fees are allowed upon dissolution of an injunction is based upon the fact that the defendant has been compelled to employ aid in getting rid of an unjust restriction forced upon him by the act of the plaintiff.

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'Whilst ordinarily the dissolution of an injunction amounts to a determination that the injunction has been improperly granted, and a right of action on the injunction bond immediately accrues to the defendants, yet this is not true where, as here, the decree itself specifically finds the issues for the plaintiffs and against all of the defendants, and that the temporary injunction was properly and providently issued'.

In Terminal Railroad Ass'n of St. Louis v. Schmidt, 353 Mo. 79, 182 S.W.2d 79, loc. cit. 82, our Supreme Court announced the same general rule by declaring: 'The allowance of damages upon the dissolution of an injunction is based upon the fact that the defendant has been compelled to employ aid and incur expense 'in ridding himself of an unjust restriction, which has been placed upon him by the action of the plaintiff'. 2 High, Injunctions, Sec. 1688; Farasay v. Hindert, Mo.App., 110 S.W.2d 785'.

We now proceed to apply this general rule to the facts presented by our particular case. There was no decision and no complete presentment in the trial court as to the issue on which the temporary injunction was granted. The trial court made no determination as to whether the writ had been granted providently or improvidently. There was no occasion and really no opportunity to do so, since on the day set for final hearing, the plaintiffs presented their motion to dismiss without prejudice as to defendant Beadnall, and the defendant City and its City Officials by answer informed the Court that all bids (including the one they had been enjoined against accepting) had been rejected and that 'inasmuch as the contract which is the subject of this lawsuit has not and will not be awarded, signed or executed, no controversy remains and nothing is left for this court to pass upon'. Then counsel for all parties in open court stated that the issue or issues on which the injunction was predicated had thereby become a...