Miller v. Donovan

• Decision Date: 12 December 1907
• Citation: 92 P. 991,13 Idaho 735
• Parties: A. R. MILLER, Respondent, v. J. J. DONOVAN et al., Appellants
• Court: Idaho Supreme Court

92 P. 991

13 Idaho 735

A. R. MILLER, Respondent, v. J. J. DONOVAN et al., Appellants

Supreme Court of Idaho

December 12, 1907

APPEAL from the District Court of the First Judicial District for the County of Kootenai. Hon. W. W. Woods, Judge.

Action on an injunction bond for the recovery of attorney's fees expended in securing the dissolution of the injunction. Judgment for the plaintiff and defendants appealed. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

Charles L. Heitman, for Appellants.

In an action for damages on an injunction bond, where plaintiff sought to recover, as one item of damages, fees paid to an attorney who resisted the injunction, and also tried the cause on its merits, the supreme court of Montana held that since the attorney was employed generally, fees could not be recovered as damages. (Creek v. McManus, 17 Mont 445, 43 P. 497; S. C., 13 Mont. 152, 32 P. 675, and authorities there cited; Parker v. Bond, 5 Mont. 1, 1 P 209.)

"The recovery of counsel fees as a part of the damages upon the dissolution of an injunction is limited to fees for services rendered either below or on appeal in procuring the dissolution of the injunction, and does not extend to all the services rendered in the suit in which the injunction was sued out." (16 Am. & Eng. Ency. of Law, 2d ed., 469; Alexander v. Colcord, 85 Ill. 323; Lambert v Alcorn, 144 Ill. 313, 33 N.E. 54, 21 L. R. A. 611.)

Where the injunction is only ancillary to the object of the action, and the dissolution of the injunction is only incidental to the result, no recovery can be had on the undertaking for the attorney's fees and expenses occasioned thereby, since in such case these items could not be regarded as damages sustained "by reason of the injunction." (Newton v. Russell, 87 N.Y. 531; Disbrow v. Garcia, 52 N.Y. 655; Bustamente v. Stewart, 55 Cal. 115.)

There was no evidence in the cause segregating the value of the counsel fees rendered respondent on the whole litigation from the value of counsel fees rendered in procuring a dissolution of the injunction. (Lambert v. Haskell, 80 Cal. 611, 22 P. 327.)

Five hundred dollars is an unreasonable charge for procuring the dissolution of the injunction in this cause, where no greater services were required to be rendered than were rendered by counsel for respondent, and where the amount involved was no greater than the judgment sought to be vacated.

Edwin McBee, for Respondent.

It is contended by respondent that the injunction was practically the only relief asked for. The services rendered by counsel in the entire case, including services rendered in the supreme court, should be considered in fixing the amount of recovery on this bond. More time was spent by counsel in preparing for and presenting the motion for dissolution of the injunction than on any other service rendered in the case.

Under the peculiar circumstances of this case and the importance of the legal issues decided in the former appeal, the sum of $ 500 is a very moderate fee, and would not be excessive under the circumstances as a fee for the services rendered in the district court in procuring the dissolution of the injunction.

The allowance of counsel fees as damages upon dissolving an injunction is based upon the fact that defendant has been compelled to employ aid in ridding himself of an unjust restriction which has been placed upon him by the action of plaintiff, and the true test with regard to allowance of counsel fees as damages would seem to be, that if they are necessarily incurred in procuring the dissolution of the injunction, when that is the sole relief sought by the action, they may be recovered. (High on Injunctions, 2d ed., sec. 1086; Thomas v. McDaneld, 77 Iowa 299, 42 N.W. 301; Colby v. Meservy, 85 Iowa 555, 52 N.W. 499; Andrews v. Glenville Woolen Co., 50 N.Y. 287.)

AILSHIE, C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

Some years ago the plaintiff in this action secured a judgment against the defendants in the district court of the first judicial district in and for the county of Kootenai; the defendants appealed, and the judgment was thereafter affirmed by this court. (Miller v. Donovan et al., 11 Idaho 545, 83 P. 608.) The defendants, Donovan and others, thereupon commenced an action in the district court against Miller and the sheriff of Kootenai county to restrain and enjoin the sheriff from selling certain property under execution to satisfy the judgment and to perpetually enjoin the defendant Miller from thereafter taking out any execution for the collection and satisfaction of that judgment and to declare the judgment void and vacate the same. At the time of filing the complaint the plaintiffs in that case, who are defendants and appellants in the case at bar, secured the issuance of a temporary injunction restraining the sheriff from proceeding with the sale under the execution, and from collecting the judgment thereunder pending the action. Upon the issuance of the writ of injunction, the plaintiffs in that case executed and filed an undertaking in compliance with the provisions of section 4291, Revised Statutes, for the sum of $ 2,500. Judgment in that case went against the plaintiffs and in favor of the defendant Miller and the sheriff. The plaintiffs thereupon appealed the case to this court where the judgment of the lower court was affirmed (Donovan et al. v. Miller et al., 12 Idaho 600, 88 P. 82, 9 L. R. A., N. S., 524) After the latter judgment became final and the original judgment was paid, Miller commenced this action on the injunction bond to recover costs and attorney's fees incurred by reason of the issuance of the temporary injunction. The trial was had and judgment entered in favor of the plaintiffs for the sum of $ 500 and costs, and defendants appealed.

The only question argued is as to the attorney's fee that was allowed by the trial court. Two objections are urged against its allowance: 1. That the fee charged and collected was a lump sum for the whole litigation, and that no specific amount was charged or collected for securing the dissolution of the injunction; and 2. That the fee allowed by the trial court was unreasonable and exorbitant. Under our statute, section 4291, no question can arise as to the allowance of attorney's fees in an action on an injunction bond. It is there provided, among other things, that the bond must be conditioned "to the effect that the plaintiff will pay to the party enjoined such costs, damages and reasonable counsel fees, not exceeding an amount to be specified, as such party may incur or sustain by reason of the injunction, if the court finally decide that the plaintiff was not entitled thereto." The bond in this case is in the language of the statute, and therefore clearly obligates the principals and surety to the payment of attorney's fees. It might be well to observe here that our statute in this respect differs from all the other statutes that have been called to our attention in reference to undertakings on injunction. Here the legislature has provided in unmistakable terms for the allowance of such "reasonable attorney's fees" as the "party may incur or sustain by reason of the injunction." In the light of this statute, the court would, perhaps, be justified in exercising more liberality in the allowance of attorney's fees in such cases than have the courts in those states where attorney's fees are not specifically allowed by statute, but are allowed by the court under the general head of damages.

The only evidence introduced in this case as to the attorney's fees was the testimony of the respective attorneys for the plaintiff and defendants in the case. Mr McBee, who conducted the litigation throughout for his client Miller, testified that he had had different understandings from time to time with his client with reference to fees, but that he never collected any fees, except a $ 25 retainer, until the case of Donovan v. Miller was affirmed in this court and the judgment was finally paid; that he then collected the judgment, which, together with interest and costs, exceeded $ 1,600, and that he then collected $ 799.35 as his total fees in the entire litigation, which included securing the judgment in the first place, and presenting the case on appeal to this court, and the appearance in both the trial court and supreme court in the injunction case; that upon the settlement he charged his client, in addition to the $ 25 retainer fee, the further sum of $ 168 for procuring the original judgment and securing its affirmance on appeal, and that he charged the further sum of $ 631 "for looking after the injunction and getting it dissolved." He further says that his understanding with Miller, as he gathered it over the 'phone, was that he was to have half the sum recovered from the defendants as his fee for the entire litigation, but that his client claimed that that was not the understanding. He says, however, that after the litigation was finally settled, he got Miller and another interested party into his office and effected the settlement as he had originally understood it; that the separate charges for each service were fixed as above stated. He fixed the fee for the services rendered in procuring the dissolution of the injunction as reasonably worth the sum of $ 500. Mr. Heitman testified that he thought the services rendered in procuring the dissolution of the injunction would be reasonably compensated by the payment of $ 150. He further stated, however, that if it was taken on a contingent fee, dependent upon success in the case, that it might have been worth $ 500. This is the gist of the evidence in the case. The court found as a matter of fact "that by reason of said injunction in said action,...