Littleton v. Burgess

Decision Date07 October 1907
Citation16 Wyo. 58,91 P. 832
PartiesLITTLETON ET AL. v. BURGESS
CourtWyoming Supreme Court

ERROR to the District Court, Sheridan County, HON. CHARLES E CARPENTER, Judge.

The action was brought upon an injunction bond by James H Burgess against Fred Littleton, the principal named in the bond, and his surety. Judgment was rendered for plaintiff. The defendants brought error. The material facts are stated in the opinion.

Affirmed.

M. B Camplin, for plaintiff in error. (Fred H. Hathorn, of counsel.)

The statute as to change of venue is mandatory. (Perkins v. McDowell, 3 Wyo. 204; Dowling v. Allen, 88 Mo. 293; Route v. Ninde, 118 Ind. 123; Walsh v. Ray, 38 Ill. 30; Ins. Co. v. Tolman, 80 Ill. 106; Turner v. Hitchcock, 20 Iowa 310; Miller v. Laraway, 31 Iowa 538; Griffin v. Leslie, 20 Md. 15; Baldwin v. Marygold, 2 Wis. 419; Shaw v. Hamilton, 10 Ind. 182; Krutz v. Howard, 70 Ind. 174; Bixby v. Clarkaddon, 63 Iowa 164; Corey v. Silcox, 5 Ind. 370; Fish v. Turnpike Co., 54 Ind. 479; Ashton v. Garretson, 85 P. 831.)

The necessity for the employment of counsel is the basis for the allowance of counsel fees in suits on injunction bonds. Not alleging a necessity therefor, the petition is insufficient. The duty of defending the suit rested upon the defendant himself as prosecuting attorney. (R. S. 1899, Secs. 1103, 1104, 1107; High on Inj. (3d Ed.), 1686, 1688; Hibbs v. Land Co., 46 N.W. 1119; Littleton v. Burgess, 82 P. 864.) The payment of attorney fees must be alleged. (Macey v. Titcomb, 19 Ind. 135; Praeder v. Grimm, 28 Cal. 11.) The petition is, therefore, wholly insufficient to allow the recovery of counsel fees. (Mitchell v. Hawley, 21 P. 833; 45 Neb. 364; 35 P. 651.) The petition is further insufficient for failing to set forth the conditions of the bond, and the breach. Setting forth the bond in haec verba is not enough. (R. S., Secs. 3560, 3533, 3559; Johnson v. Ins. Co., 3 Wyo. 142; 1 Kinkead Code Pl., 381; 1 Whit. Code, 145.) The amount of fees for procuring dissolution of the injunction should be specified clearly and separately from fees incurred in other matters. Upon the allegation of the petition that the fees were incurred in defending the suit and securing a dissolution of the injunction, the amount expended in the latter effort is not alleged. The petition will not sustain a judgment. (Whit. Code (6th Ed.), 822; 7 O. N. P., 416; 10 O. Dec., 246; High on Inj. (3d Ed.), 1689; Cuxris v. Baehonan, 42 P. 911; Bustamonte v. Stewart, 55 Cal. 115; Mitchell v. Hawley, 21 P. 833; Lambert v. Alcorn, 21 L. R. A., 611; Olds v. Carey, 10 P. 786; Anderson v. Anderson, 55 Mo.App. 276; Door Co. v. Parks, 79 Ill.App. 190; Keith v. Henkleman, 173 Ill. 146 (50 N.E. 692); Landis v. Wolf, 206 Ill. 401 (69 N.E. 103); Jameson v. Bartlett, 63 Neb. 642; Church v. Baker, 71 P. 888; Riddle v. Cheadle, 25 Ohio St. 278; Newton v. Russell, 87 N.Y. 527; Trapnell v. McAfee, 77 Am. Dec., 158; Quin v. Baldwin, 78 P. 552, 554.) The defense of the main action involved services not necessary to the dissolution of the injunction. (85 N.W. 1016; Parker v. Bond, 1 P. 209; Lambert v. Haskell, 22 P. 327; Water Co. v. Steamship Co., 35 P. 651; Carnes v. Heimroad, 45 Neb. 364; Langworthy v. McKelvey, 25 Iowa 48.) Unsuccessful attempts to dissolve not an element of damage. (Pollock v. Whipple, 77 N.W. 355; Thompson v. Benson, 82 P. 1040; Cunningham v. Finch, 88 N.W. 168; Barr's Estate v. Post, 93 N.W. 144.) Nor services on appeal, after dissolution. (High on Inj., 1687 (3d Ed.); Thurston v. Haskell, 81 Me. 303.)

According to the petition the party enjoined was the officer, in his representative capacity--hence the bond should have run either to him in that capacity, or to his principal. Hence it is not conditioned as required by law or the order of the court. It follows no injunction ever operated in the injunction suit. The bond set forth could not be construed to be the bond required in the order of the court, or contemplated by law. (Sec. 4043 of the statute.) It is defective as a personal bond to Burgess, because the covenant is joint. It recites an order of court, in which a temporary injunction has been granted, to become effective upon the execution of a bond to defendants. The covenant is that "the plaintiff will pay said defendants and each of them all damages which they may sustain." Surely this is not the bond contemplated by the order of the court, or provided for by law. (59 Ill. 205.) The sureties to an injunction bond stand strictly upon the precise terms of their bond, beyond which their liability cannot be extended. (Williamson v. Hall, 1 Ohio St. 190; High on Inj. (3d Ed.), 1635, 1638; Hall v. Williamson, 9 Ohio St. 17; 20 O., 93; State v. Corey, 16 Ohio St. 17; Smith v. Haesman, 30 Ohio St. 662; Lang v. Pike, 27 Ohio St. 498; Meyers v. Parker, 6 Ohio St. 501; State v. Medary, 17 Ohio St. 565.)

The plaintiff was not the party in interest. The damage, if any, accrued to the state. The defect appears upon the face of the petition. (R. S. 1899, Sec. 4043; 82 P. 864; 1 Kinkead Code Pl., 99; U. S. v. Shoup, 21 P. 656; City v. Randall, 66 P. 938; Kinkead v. Benton, 14 P. 294; City v. Brulo, 39 P. 456.) A bond to an officer is a bond to the town, and may be sued in the name of the town. (Hopkins v. Plainfield, 7 Conn. 286; Dyer v. Covington, 28 Pa. St. 186; Fairfax v. Soule, 10 Vt. 154.)

E. E. Enterline, Lonabaugh & Wenzell and C. A. Kutcher, for defendant in error.

Unless the motion and affidavit for change of venue are incorporated in the bill of exceptions, the denial of the motion is not reviewable on error. (Perkins v. McDowell, 3 Wyo. 328.) It would seem that the statute contemplates a change of venue only in cases triable by a jury. (R. S. 1899, Secs. 4291, 4282.) It is not allowable in cases triable by the court. (4 Ency. Pl. & Pr., 384; Dean v. Stone (Okla.), 35 P. 578.) The judge of another district was called in to try this case on the application of plaintiffs in error.

The defendant in error clearly had authority to employ counsel in the injunction suit against him, and it is not necessary for a recovery of the fees in a suit on the injunction bond that they should have been paid. The legal liability to pay them is sufficient. (Noble v. Arnold, 23 Ohio St. 264; High on Inj., 1688; Patterson v. Rinard, 81 Ill.App. 80; Reich v. Berdel, 33 Ill.App. 186; 2 Sutherland on Damages (2d Ed.), Sec. 525; Plymouth M. Co. v. Fid. & Guar. Co. (Mont.), 88 P. 565.) Where an injunction is the only relief sought in an action, the defendant may recover attorney's fees necessarily incurred in answering and defending the action on the merits in an action on the injunction bond, but if the injunction is only ancillary to the principal object of the action, fees can only be recovered for the services rendered in securing a dissolution of the injunction. (2 High on Inj. (2d Ed.), 1686, 1688; 2 Sutherland on Damages (2d Ed.), 525; Creek v. McMannus (Mont.), 32 P. 675; Thomas v. McDonald, 77 Iowa 126; Landsley v. Nietert, 42 N.W. 635; Reece v. Northway, 58 Iowa 187 (12 N.W. 258); Noble v. Arnold, 23 Ohio St. 264.)

The injunction suit was against Burgess, and the official title added was descriptio personae merely. (Breeze v. Haley (Colo.), 59 P. 333.) After judgment and on error the pleadings will be liberally construed. (Frontier Sup. Co. v. Loveland (Wyo.), 88 P. 651.) The petition was sufficient. An injunction bond will not be held defective for technical defects or informalities in its execution. (1 Spelling Inj. Rem., 933.)

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

This action was brought in the district court of Sheridan County by the defendant in error as obligee against the plaintiffs in error as obligors to recover upon an injunction undertaking given and executed by Littleton as principal and Schroeder as surety in an action wherein the said Littleton was plaintiff and the said Burgess, county and prosecuting attorney of Sheridan County, Wyoming, was defendant. The case was tried without the intervention of a jury and the court found and rendered judgment in favor of Burgess. Littleton and Schroeder bring the case here on error.

1. Plaintiffs in error (defendants below) complain that the trial court denied their motion for a change of venue. That question cannot be here considered, for the reason that there is no bill of exceptions, and the motion and affidavit in support thereof, not being pleadings in the case, can only be brought into the record by such a bill. It was so decided in Perkins v. McDowell, 3 Wyo. 328, 23 P. 71, and that decision has ever since been the rule of practice in this court.

2. Plaintiffs in error demurred to the petition on three grounds, viz.: First, that the petition does not state facts sufficient to constitute a cause of action; second, that there is a defect in the party plaintiff, appearing on the face of the petition, in this: that "James H. Burgess," in his individual capacity, or as an individual, is not the proper party plaintiff, but that the face of the petition discloses the proper party plaintiff to be either James H. Burgess as county and prosecuting attorney of Sheridan County, Wyoming, or the State of Wyoming; third, that the plaintiff has no capacity to sue, as disclosed from the face of the petition. The demurrer was overruled and the defendants were given time within which to plead, to which ruling they reserved an exception, and such ruling is here assigned as error.

It is alleged in the petition that James H. Burgess was the duly elected and qualified county and prosecuting attorney in and for Sheridan County during 1904 and 1905. That on August 20, 1904, the plaintiff in error, Littleton commenced an action in the district court of Sheridan...

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