Miles v. Edwards

• Decision Date: 31 January 1886
• Citation: 6 Mont. 180
• Parties: MILES v. EDWARDS and others.
• Court: Montana Supreme Court

6 Mont. 180

MILES

v.EDWARDS and others.

Supreme Court of the Territory of Montana.

January Term, 1886.

Appeal from Second district, Deer Lodge county.

Robinson & Stapleton, for appellants.

Knowles & Forbis and W. W. Dixon, for respondent.

POLLARD, J.

This was an action upon an undertaking executed by the appellants, Charles W. Edwards and others, his sureties, to procure a restraining order to restrain the respondent, Frank R. Miles, from the commission of certain acts complained of in the complaint. The breach charged is that “upon the hearing of all the matters the court finally decided that said Charles W. Edwards was not entitled to an injunction in said cause, and the said restraining order was then and there dissolved and discharged;” that subsequently, and on the second day of December, A. D. 1884, the said Charles W. Edwards dismissed his cause of action, and the same was finally determined. By way of damages, the complaint alleges that the respondent paid for attorneys' services in the hearing, contesting, and determining of said injunction suit the sum of $300, which was a reasonable compensation for attorneys' services necessarily rendered; that the respondent suffered further damages in the sum of $200; all which damages remain unpaid. The answer is substantially a denial of the material averments of the complaint. Upon trial, judgment for $300 and costs was rendered in favor of respondent.

The appeal is prosecuted under section 419 of the Code of Civil Procedure, and the error assigned is of law: that the court erred in giving and in refusing instructions touching the right to recover damages for amounts paid for attorneys' fees in actions upon injunction bonds or undertakings, under the circumstances disclosed by the record. We do not understand appellants' counsel either in their written brief, or in their oral argument, seriously to controvert the proposition that the value of services of attorneys ordinarily constitute a proper element of damages in actions upon injunction bonds. Heretofore this court has held that such an element is a proper element.

Sutherland, in his work upon Damages, at pages 141 and 142 of the first volume, says:

“Upon statutory bonds and undertakings to pay damages and costs resulting from the issue of certain writs, as an injunction, sequestration, or attachment, in case it shall be decided that the party obtaining it was not entitled to it, the recovery depends mainly on the terms of the undertakings; but damages and costs include, among other things, the costs incident to the particular writ, and of the proceedings to procure its discharge, and including counsel fees, except in the federal courts, on principle and the weight of authority, where the prosecution or defense of suits is rendered necessary naturally and proximately by a breach of contract, or any wrongful act, the costs of that litigation, reasonably and judiciously conducted, incurred or paid, including reasonable counsel fees as part of the damages.”

The supreme court of California say:

“It appears to us that the principle is not only just in equity, but sound in law, that all damages to which a party may be put by the wrongful issuance of an injunction should be recoverable in actions upon such a bond, and reasonable counsel fees should be included in those damages.” Ab Thaie v. Quan, 3 Cal. 219.

To the same effect is High, in his work on Injunctions. See 973 and 974:

“Although there is some conflict of authority, it comports with our ideas of justice that if one be wrongfully driven to incur expenses in such a case, that the fact that it was for attorneys' fees constitutes no reason why he should not be reimbursed, and we adhere to the rule above set forth.”

The contention of appellants is narrower, as made by the errors assigned upon the instructions and insisted upon in argument; and is (1) that as this restraining order merely required the respondent to appear before the judge in chambers, “on the twenty–third day of July, A. D. 1884, to show cause, if any he has, why he should not be enjoined,” etc., *** “and in the mean time, and until the hearing of this order, said defendant *** be enjoined and restrained,” etc., that after said twenty–third day of July said restraining order was functus officio, and had expired by limitation; (2) that there is no right to recover for expenses incurred in the suit for attorneys'services rendered after the death of the restraining order, after July 23d.

Are these positions of counsel tenable? Is it true that a restraining order in language of the one under consideration—“to appear, *** on the twenty–third day of July, 1884, to show cause, if any he has, why he should not be enjoined, *** and in the mean time, and until the hearing of this order, be enjoined”—is invalid, and of no effect? It never was the law that a court is under compulsion to perform a judicial act at the very day and hour it has cited a litigant to appear before it. Many circumstances are conceivable which would prevent prompt action,—such as sickness of the judge, other and more important business. No one would be safe in violating a restraining order because of the lapse of the time mentioned in it, if the order itself informed him that at the expiration a judicial hearing was contemplated. This order expressly extended the restraint until the hearing. Mandates of courts are entitled to a reasonable construction, because they are made in the interest of public welfare. This position of appellants, therefore, cannot be maintained.

The cases cited in argument ( Tarpey v. Shillenberger, 10 Cal. 391;Hicks v. Michael, 15 Cal. 109) are neither in conflict with the conclusion. The former is exceedingly brief, both in its statements of facts and deductions of law. All that seems to be decided is that the sureties might stand upon the very terms of their contract, of which no sufficient breach was alleged by the latter; that when, upon the hearing, an injunction is refused, the previous temporary restraining is at an end, and no affirmative action is necessary to put a period to its existence. In Prader v. Grim, 13 Cal. 587, an order was issued requiring the defendants to show cause, ...