Nielsen v. City of Albert Lea

• Decision Date: 31 October 1902
• Citation: 91 N.W. 1113,87 Minn. 285
• Parties: NIELSEN et al. v. CITY OF ALBERT LEA et al.
• Court: Minnesota Supreme Court

87 Minn. 285

91 N.W. 1113

NIELSEN et al.

v.CITY OF ALBERT LEA et al.

Supreme Court of Minnesota.

Oct. 31, 1902.

Appeal from district court, Freeborn county; Nathan Kingsley, Judge.

Action by Jens P. Nielsen and others against the city of Albert Lea and others. A demurrer to the complaint was sustained, and plaintiffs appeal. Reversed.

Syllabus by the Court

1. In a suit upon a statutory injunction bond, where the bond is predicated upon a preliminary injunction issued in a cause the purpose of which was to enjoin defendants from prosecuting certain actions, counsel fees and the necessary expenses incurred in an unsuccessful effort to dissolve the injunction and in conducting the main action may be recovered upon final dissolution of the injunction. Lamb v. Shaw, 45 N. W. 1134, 43 Minn. 507, distinguished.

2. Where the injunction was dissolved by a dismissal of the main action on the part of the plaintiffs, followed by judgment of dismissal, there was, in effect, a final adjudication that the injunction writ had been wrongfully issued. J. A. Sawyer and John Anderson, for appellants.

H. H. Dunn, Henry A. Morgan, H. C. Carlson, and J. G. Skinner, for respondents.

LEWIS, J.

Action upon contract to recover damages upon a bond which had been given in pursuance of a temporary writ of injunction sued out by the defendant city in a former action against these plaintiffs. The demurrer to the complaint having been sustained, plaintiffs appeal.

From the complaint it appears that in 1896 the plaintiffs in this action commenced independent actions against the defendant city to recover damages for maintaining a dam at the foot of a lake, which caused the water to overflow the lands of the respective plaintiffs. To quote from the complaint, the purpose of that action was as follows: ‘Said injunction action was brought solely to restrain plaintiffs from obtaining any trial in the said pending suits, and to prevent and restrain them from securing any trial by jury of any of the issues, and upon any of the matters therein raised, which was at all times the sole aim, object, and purpose of said action in its entirety, and of said city in bringing and attempting to maintain it.’ It is then alleged that, a demurrer to the complaint in that action having been sustained, the city amended its complaint for the purpose of creating a fictitious cause of action, and alleged in its amended complaint facts which the city knew to be untrue, in order to overcome the objection formerly made to the complaint and sustained. The amended complaint of the city in the former action was demurred to. The demurrer was overruled, and the complaint sustained, and a motion by defendants to dissolve the injunction was denied. After the decision of the court refusing to dissolve the injunction and overruling the demurrer to the complaint, the defendant city dismissed its action against these plaintiffs, thereby dissolving the injunction. This action is brought against the city and its surety upon the injunction bond to recover attorneys' fees and expenses paid out in the effort to dissolve the injunction and in testing the validity of the complaint in that action. There is an apparent attempt on the part of plaintiffs to plead a cause of action in tort against the defendant city, charging bad faith in amending its complaint; and some attempt is also made to plead that the decision of the court in sustaining the complaint as against the demurrer was based upon a misapprehension of facts. It is unnecessary to consider this part of the pleading, as it is clearly irrelevant, and has no...