Olds v. Cary

• Decision Date: 21 April 1886
• Citation: 13 Or. 362,10 P. 786
• Parties: OLDS v. CARY and others.
• Court: Oregon Supreme Court

10 P. 786

13 Or. 362

OLDS v. CARY and others.

Supreme Court of Oregon

April 21, 1886

Appeal from Yamhill county.

T.N. Strong, for appellants, W.B. Cary and others.

W.D Fenton, for respondent, James H. Olds.

THAYER, J.

The respondent commenced an action in the court below against the appellants, upon an undertaking executed by them in a suit which had theretofore been begun in the said circuit court by the appellant Cary against the respondent, to enjoin him from interfering with a certain inclosure in which a crop of wheat was growing; and wherein the said appellant, in order to obtain a provisional writ of injunction, executed the undertaking as principal, and the appellant Holladay executed it as surety. The undertaking was to the effect that the appellants would pay all costs and disbursements that might be decreed to the respondent, and such damages, not exceeding the sum of $500, as he might sustain by reason of the injunction if the same were wrongful or without sufficient cause. It was alleged in the complaint in the action in which the judgment appealed from was obtained that a writ of injunction duly issued in said suit; and that, upon the hearing thereof, it was dissolved by said circuit court, and that the court decreed to the respondent his costs and disbursements therein taxed at $93.80, which the appellant Cary paid, and that the decree dissolving the injunction had become final; that by reason of the granting of the injunction, and the continuance thereof to its dissolution the respondent was compelled to employ and pay, as attorney's fees to procure the dissolution of it, the sum of $150; and that he sustained other damages set out in the complaint. The appellants filed a demurrer to the complaint which was overruled, and thereupon answered over. The issues were tried by jury; and upon the trial thereof the respondent's counsel, in order to sustain the said allegation of the complaint, as to the employment and payment of the attorney's fees, gave evidence tending to prove that he employed certain attorneys to defend the suit, and paid them $100 cash, and executed his note for $50. The evidence was objected to by the appellants' counsel, but the court overruled the objection, and an exception was taken to the ruling. The jury returned a verdict for the respondent supposed to include said $150, and upon which the judgment appealed from was entered.

Two questions are raised by the appellant's counsel upon the appeal. The first is that the complaint was defective in not alleging that the injunction was wrongful, or without sufficient cause; the second one, that the court improperly overruled the objection to the admission of the evidence regarding the employment and payment of attorneys in the suit.

The objection to the complaint, I think, was well taken. The fact that the injunction was wrongful, or without sufficient cause, should have been alleged. The dissolution of it by the court was evidence of its being wrongful, and should have been introduced as evidence, and not alleged as the substantive fact. A moment's reflection will convince an attorney that this view is correct. The objection was evidently good upon demurrer, though I do not think that the complaint was fatally defective. I think it was good after verdict, and that the appellants waived the objection to it by answering over. If they had stood upon their demurrer however, they would have been able to insist upon the point in this court; but, under the circumstances, I think the error was cured. The defect was in the statement, and not in the cause of action, and could therefore be waived by going to trial upon the merits. This I believe is an elementary principle.

The second question is more serious. It is very doubtful whether, upon principle, attorney's fees can be recovered in any action, beyond the amount allowed by law, unless expressly stipulated, though in almost all the adjudged cases they are allowed, in actions upon injunction bonds or undertakings, as a part of the damages, if it is ascertained that the injunction was wrongful. High, Inj. says:

"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 the plaintiff." 2 High, Inj. § 1686.

It is held in nearly all the states that such an allowance is proper, as a part of the damages incurred in consequence of the injunction. The supreme court of the United States however, has taken a different view of the subject, and holds that it is not supported...