New Nat. Turnpike Co. v. Dulaney

• Decision Date: 07 January 1888
• Citation: 6 S.W. 590,86 Ky. 516
• Parties: NEW NATIONAL TURNPIKE CO. v. DULANEY et al.
• Court: Kentucky Court of Appeals

6 S.W. 590

86 Ky. 516

NEW NATIONAL TURNPIKE CO. v. DULANEY et al.

Court of Appeals of Kentucky.

January 7, 1888

Appeal from Louisville law and equity court.

Action on an injunction bond for damages by New National Turnpike Company against W. H. Dulaney, John L. Moore, Charles Bremaker, and D. E. Stark. Judgment, on demurrer, for defendants, and plaintiff appealed.

Barnett Noble & Barnett and C. B. Seymour, for appellant.

P. B Muir, for appellees.

PRYOR C.J.

The National Turnpike Company and the Jefferson & Bullitt Turnpike Company instituted proceedings in the Jefferson county court to condemn a right of way for a turnpike road through land owned by the appellees. A petition was filed by the appellees in the Louisville law and equity court enjoining that proceeding, to which a demurrer was filed by the appellants that was sustained, the injunction dissolved and the petition dismissed. The appellees, in order to obtain the injunction, executed the following bond: "We undertake that the plaintiffs, W. H. Dulaney, John L. Moore Charles Bremaker, and Delaney E. Stark, shall pay to the defendants, the National Turnpike Road Company, and the Jefferson Turnpike Company, the damages, not exceeding twenty-five hundred dollars, which they may sustain by reason of the injunction in this action, if it is finally decided that said injunction ought not to have been granted." The present action was instituted on this bond, and the damages sustained by reason of the injunction sought to be recovered. It is claimed in the petition that the plaintiffs had paid counsel fees for the purpose of having the injunction dissolved, to the amount of $200; and the sole question presented by the appeal is, can counsel fees be claimed and recovered as damages under the stipulations of the injunction bond? The court below adjudged, on a demurrer to the petition, that no such recovery could be had, and in that conclusion we must concur.

The case of Burgen v. Sharer, from the Madison circuit, reported in 14 B. Mon. 399, is conclusive of the present case, as it determines directly the question involved. The rule is that when the attachment or injunction is merely ancillary, or in aid of the relief sought, or is relied on to secure the relief when obtained, or to prevent the commission of a wrongful or tortious act that would result in irreparable injury before the termination of the prime cause of action, then a recovery may be had on the bond for the payment of reasonable counsel fees, when the defendant has succeeded in discharging the attachment or dissolving the injunction; but, on the contrary, where the injunction is the relief sought, and in fact gives the relief, if sustained, no recovery for counsel fees can be had; and, as said in Burgen v. Sharer, the injunction preventing the parties from proceeding to open or condemn the way, the only injury was the deprivation of its use in consequence of the injunction. The only damage that can be recovered in this class of cases " is such as results from the operation of the injunction itself." An attachment is generally, and perhaps always, in aid of the original cause of action, and issues to secure the relief when obtained. It may be issued to secure the payment of the debt when reduced to judgment. The obligor may admit the debt and yet deny the grounds for the attachment. In such a case, if the plaintiff fails to make out the grounds, the defendant, although a judgment for the debt is rendered, may sue on the attachment bond, and recover attorneys' fees paid, if reasonable, in order to have the attachment discharged. So, in case of an injunction, where the widow asserts her right to dower and obtains an injunction to stay waste, the right to dower may be conceded or...