Parker v. Bond

• Decision Date: 06 January 1883
• Citation: 5 Mont. 1
• Parties: NAHUM PARKER, Adm'r, v. ENOCH F. BOND and others.
• Court: Montana Supreme Court

5 Mont. 1

NAHUM PARKER, Adm'r,

v.ENOCH F. BOND and others.

Supreme Court of the Territory of Montana.

Filed January 6, 1883.

Special damages must be alleged in order to authorize the proof thereof, or to support a judgment for special damages. The defendant must have notice and the allegations and proof must correspond.

The objection that a complaint does not state a cause of action is never waived, and neither in this court nor any other can a bad complaint support a good judgment.

A reasonable compensation paid as counsel fees in dissolving an injunction, may be recovered in action on the bond, the amount being limited to fees for procuring the dissolution and not for defending the entire case.

Appeal from first district, Madison county.

Blake & Ward, for appellants.

J. E. Callaway, for respondent.

WADE, C. J.

This is an action upon an injunction undertaking, issued in the case of L. A. Fenner against Van Brocklin and Mallett, represented herein by Nahum Parker, administrator, plaintiff. The complaint alleges, in substance, that on the sixteenth day of November, 1874, in an action brought by L. A. Fenner against Van Brocklin and Mallett, a temporary restraining order was issued, and an undertaking executed by the defendants herein in the sum of $1,000, given in favor of the defendants therein to cover any damages that might result to them in case it should be finally determined that the injunction or restraining order was wrongfully issued, which undertaking is set forth in full and made a part of the complaint. The complaint further alleges that such proceedings were had in the action that it was finally decided and adjudged that the plaintiff therein was not entitled to said injunction; “that in having said injunction dissolved, and in and about defending of the same in said court, these plaintiffs were compelled to, and did, employ counsel, and were necessarily compelled to pay, lay out, and expend the sum of $200 in and about the employment and paying said counsel; that the damages in other respects sustained by these plaintiffs, by reason of the said injunction, amounts to the sum of eight hundred dollars, and interest thereon from the date of the dissolution of said injunction.”

Mallett, one of the plaintiffs, died before judgment was entered, and the action was continued in the name of Van Brocklin as surviving partner. Van Brocklin died after the entry of judgment in his favor for the full amount covered by the penalty of the undertaking, and before the motion for a new trial had been heard; and thereupon Nahum Parker, the plaintiff, was appointed administrator of the estate of Van Brocklin, and the action was thereafter prosecuted in his name.

The appellants contend, among other things, that the complaint does not state a cause of action as to the $800 claim for damages, or for any damages except as to the $200 alleged to have been paid out as attorney fees; that this defect in the complaint may be taken advantage of at any time, and that as to the $200 claim there is no proof to support it; second, that the complaint does not support the judgment; and, third, that the damages assessed were not alleged. The respondents, in answer, say that, if the complaint did not state a cause of action, the defendants should have demurred; and that if incompetent evidence was received at the trial, no exceptions were properly saved thereto.

A jury having been waived by the parties, the cause was tried before the court upon evidence before that time taken, reduced to writing, and reported by a referee. At the taking of the testimony, the defendants, by their counsel, objected to very much of the evidence, and among the rest to any proof of special damages under the allegations of the complaint, and asked the referee to pass upon their objections, which he refused to do, but noted the defendants' objectionsin his report of the testimony. The testimony, as taken by the referee, together with the several objections of the parties thereto, was agreed by counsel, and upon the close of the argument of counsel for the defendants he asked the court to pass upon the competency or incompetency of the evidence produced on the trial; but the court, in considering the evidence, failed to sustain or overrule the several objections as they appeared in the record. After the rendition of the judgment, counsel for the defendants asked the court to enter an order upon each and several the objections made to the testimony and matters of evidence in the case, which, by the court, was refused, and the defendants duly excepted.

After the rendition of the judgment in favor of the plaintiff, the defendants filed their motion for a new trial for the following, among other reasons: First, that the court erred in considering any evidence of damages other than that pertaining to attorney's fees under the pleadings in this action, and against the objections of the defendants; second, that the court erred during the trial of the cause, sitting as a jury, in not ruling upon the objections of the defendants to the competency and admissibility of evidence taken before the referee, thereby depriving the defendants of their privilege of excepting during the trial to the ruling of the court upon any particular objection, but considered all the evidence taken by the referee against objections of the defendants; third, that the evidence is insufficient to justify the findings in this, that the evidence shows that the sum of $200 was paid to the attorneys for all their services in the case, which included their services for procuring a dissolution of the injunction at chambers, and the trial of the case on its merits at the term; and, fourth, that the proof of special damages was wholly incompetent under the allegations of the complaint and the pleadings.

The statement on motion for a new trial having been settled, the motion was overruled, to which action of the court the defendants duly excepted, and appeal from the judgment and from the order overruling their motion for a new trial.

1. The allegations of the complaint as to damages other than that in relation to attorney's fees is general, and is as follows: “That the damages in other respects sustained by these plaintiffs, by reason of the said injunction, amounts to the sum of eight hundred dollars, and interest thereon from the date of the dissolution of said...