Kemp v. Donovan

• Decision Date: 21 July 1919
• Docket Number: 1 Div. 317
• Parties: KEMP et al. v. DONOVAN et al.
• Court: Alabama Court of Appeals

84 So. 412

17 Ala.App. 190

KEMP et al. v. DONOVAN et al.

1 Div. 317

Court of Appeals of Alabama

July 21, 1919

Rehearing Denied Oct. 21, 1919

Samford J., dissenting in part.

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by Annie J. Donovan and another against W.H. Kemp and others on an injunction bond. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Gaillard Mahorner & Arnold, of Mobile, for appellants.

Gregory L. & H.H. Smith, of Mobile, for appellees.

BROWN P.J.

The bill in equity, as originally filed by Kemp, was against one Davis, and sought to establish and enforce a lien on certain personal property alleged to have been sold by Kemp to Davis on the ground that Davis, in violation of the contract of sale, had removed the property from the premises leased by Kemp to Davis contemporaneously with the sale, the purpose of establishing the lien being to enforce the payment of the purchase price of the property, default having been made in the payment thereof. Subsequent to the filing of the original bill, it was amended by making appellees Donovan and Lawrence parties respondent and averring that Davis had surreptitiously removed the property from the leased premises of Kemp to the premises of said Lawrence and placed it in the possession of the respondent Donovan. For the purpose of preserving the status quo as of the date the bill was filed, the complainant applied for, and obtained, a temporary injunction, restraining the said respondents from removing or disposing of the property pendente lite. The respondent Davis interposed a general demurrer, attacking the equity of the bill, and the respondents Donovan and Lawrence adopted, by separate paper filed, the demurrers filed by Davis. On submission of the cause on the demurrers to the bill, a decree was rendered by the circuit court overruling the demurrers, and from that decree an appeal was prosecuted to the Supreme Court. On the hearing in the Supreme Court, the decree of the circuit court was reversed and one rendered sustaining the demurrers to the bill and dismissing it for want of equity. Davis v. Kemp, 201 Ala. 219, 77 So. 745. This action is by Donovan and Lawrence against Kemp and the sureties on the injunction bond, executed as a predicate to the issuance of the temporary injunction.

The material and controlling question presented in this case is whether the plaintiffs are entitled to recover, as elements of damages, the expenses incurred by them in the employment of counsel to represent them in filing their demurrer to the bill and presenting it to the trial court and in prosecuting the appeal to the Supreme Court. There is no division of opinion here that--

"Damages to be recoverable upon an injunction bond must fall within its condition and therefore must have been caused by the injunction. Hence where the injunction is not the principal aim of the suit, but is merely incidental to other relief sought, the expense of counsel fees incurred by the party enjoined in defense of the main suit and irrespective of the injunction cannot properly be allowed as a liability on the bond." Curry v. American Freehold Land Mortgage Co., 124 Ala. 614, 27 So. 454; Bolling v. Tate, 65 Ala. 417, 39 Am.Rep. 5; Jackson v. Millspaugh, 100 Ala. 285, 14 So. 44; Jesse French Piano Co. v. Porter, 134 Ala. 307, 32 So. 678, 92 Am.St.Rep. 31.

But in this case it is manifest from the facts above stated that the only relief sought against the plaintiffs in this case was injunctive relief, whatever might be said of the character of the relief sought against Davis, who is not a party to this suit, and brings the case clearly within the rule laid down in Bush v. Kirkbride, 131 Ala. 409, 30 So. 782, where it was said:

"This liability is by no means limited in respect to costs and charges incurred by the persons enjoined to such as are incident to efforts to have the injunction dissolved. Those are not the only costs and charges which approximately result from the issuance of the writ and grow out of efforts on the part of the respondents affected by it to be relieved from its operation. The fees of counsel for investigation of respondents' status and rights with reference to the injunction, and for his advice thereon, and for services rendered in any proceeding or effort the purpose of which, and the effect of which if successful, is to lift the restraint of the writ, whether this be sought to be done through a motion to dissolve the injunction, or a motion to discharge it, or through a motion to dismiss the bill for want of equity or a dismissal of it on pleadings and proof at the hearing where, as in the case at bar, injunctive relief is the sole purpose and prayer of the bill, constitute damages sustained by the suing out of the injunction, and are recoverable as such by suit on the bond when the injunction has in point of fact been in any way or for any cause dissolved; and this upon the very letter of the statute and the bond given in conformity to it."

See, also, Jackson v. Millspaugh, supra, in which the injunction was dismissed on final hearing on the pleadings and proof, where it is said:

"We concur with the city court in holding that, in this case, all the expense incurred by Millspaugh in preparing the case for final hearing must be classed as damages resulting from the injunction, and is recoverable."

We concur in the conclusion, and in the reversal for that reason, that such damages, to be recovered, must be specially claimed, and it is not enough to prove the value of the services rendered; but, to entitle the plaintiffs to recover, they must show that they either paid for such services, or incurred liability therefor. Schening v. Cofer, 97 Ala. 726, 12 So. 414; Curry v. American Freehold Land & Mortgage Co., supra.

Code of 1907, § 5987, subdiv. 5, makes the certificate issued by the clerk of the Supreme Court thereunder evidence in any cause in any court in this state of the facts set forth as therein provided, and the court did not err in admitting the certificate issued in the case of Davis v. Kemp, as evidence in this case.

Reversed and remanded.

BRICKEN, J.,

concurring.

SAMFORD, J. (dissenting).

I concur in the reversal of the judgment in this case, but I do not think the conclusions reached by the majority are correct for the following reasons.

...