Pelkey v. Nat'l Sur. Co.

• Decision Date: 27 June 1919
• Docket Number: No. 21289.,21289.
• Citation: 143 Minn. 176,173 N.W. 435
• Parties: PELKEY v. NATIONAL SURETY CO. et al.
• Court: Minnesota Supreme Court

143 Minn. 176

173 N.W. 435

PELKEY

v.NATIONAL SURETY CO. et al.

No. 21289.

Supreme Court of Minnesota.

June 27, 1919.

Appeal from District Court, Hennepin County; Charles S. Jelley, Judge.

Action by E. J. Pelkey against the National Surety Company and Richard Holzschuh, as administrator of Clara Holzschuh, deceased. Directed verdict for defendants, and, from an order denying his motion for a new trial, plaintiff appeals. Order reversed.

Syllabus by the Court

When the sole purpose of an action is to secure a permanent injunction, and a temporary injunction giving substantially the relief prayed is issued and remains in effect during the pendency of the action, and judgment is rendered in favor of the defendant, the reasonable value of counsel fees incurred in defending the action are recoverable in an action on the injunction bond.

In an action on an injunction bond the defendants cannot relitigate the merits involved in the action for an injunction; and where the action was to enjoin the maintenance of an icehouse and the carrying on of an ice business on certain premises an order of the city inspector of buildings made about the time of the commencement of the action directing the tearing down of the icehouse is not a bar to an action on the injunction bond.

If the defendants in the action on the bond can avail themselves of the order of the building inspector as bearing upon the question of damages, the validity of the order is subject to attack by the plaintiff. An order of a municipal officer or board, in the exercise of a police power, restricting the use of property or ordering its destruction, may not amount to the taking of property without due process and the owner may not be entitled to an injunction; but at some time and in some way he is entitled to have determined in a judicial proceeding the rightfulness of the taking or destruction.

The plaintiff sustained some damage, aside from counsel fees incurred, by reason of the injunction. Whether his evidence shows any loss of profits is in doubt; and if there was a loss it was small. George S. Grimes and Jesse Van Valkenburg, both of Minneapolis, for appellant.

Benton & Morley, C. A. Pidgeon, and Andrew Fawcett, all of Minneapolis, for respondents.

DIBELL, J.

This is an action on an injunction bond. A verdict was directed for the defendants at the close of the testimony. The plaintiff appeals from the order denying his motion for a new trial.

[1] 1. On January 11, 1917, Clara Holzschuh, now deceased, of whom the defendant Richard P. Holzschuh is the administrator, commenced an action against the plaintiff Pelkey to permanently enjoin him from storing ice and carrying on an ice business upon certain premises in Minneapolis. Upon order to show cause a temporary injunction was issued on March 6, 1917. The trial resulted in a judgment on the merits for Pelkey. This action is on the injunction bond given by Mrs. Holzschuh with the defendant National Surety Company as surety.

The plaintiff seeks to recover as one item of his damages the reasonable value of the services of his counsel in defending the action. It was held that he was not entitled to recover counsel fees. The bond is ‘conditioned for the payment to the party enjoined of such damages as he shall sustain by reason of the writ, if the court finally decides that the party was not entitled thereto.’ G. S. 1913, § 7891. An action on the bond is the only remedy of the party enjoined, unless there be malice. Hayden v. Keith, 32 Minn. 277, 20 N. W. 195. The right to damages depends upon the construction of the bond.

By the temporary injunction it was directed:

‘That pending the final determination of said cause and the judgment of the court therein, the defendant, his agents, employés and servants refrain from filling, storing and keeping ice upon the above described premises, except such as was placed thereon prior to the commencement of this action, and from carrying on the business complained of in the complaint herein.’

The prayer of the complaint was:

‘That defendant, his agents and employés, be forever restrained and enjoined from storing ice in or upon said premises and from carrying on an ice business upon and from said premises.’

And there was a prayer for a temporary injunction which was issued in the form quoted above.

The purpose of the action was to obtain a permanent injunction restraining Pelkey from making the designated use of this property. There was no other. Nothing else was wanted. It was distinctly an action for an injunction and not an action to which an injunction was incidental. It is held upon good authority that when the temporary injunction is ancillary to the main action counsel fees incurred in defending such action are not recoverable in an action on the injunction bond. Lamb v. Shaw, 43 Minn. 507, 45 N. W. 1134, is such a case. But where the sole purpose of the action is to obtain a permanent injunction counsel fees incurred in defending the main action are by like good authority damages within the terms of the injunction bond. Weierhauser v. Cole, 132 Iowa, 14, 109 N. W. 301, and cases cited; Loofborow v. Shaffer, 29 Kan. 415; Raupman v. City of Evansville, 44 Ind. 392;Bush v. Kirkbride, 131 Ala. 405,30 South. 780;Jackson v. Millspaugh, 100 Ala. 285,14 South. 44;Curry v. American, etc., Co., 124 Ala. 614,27 South. 454;Jamison v. Dulaney, 74 Miss. 890,21 South. 972. A good collection of cases is found in a note in 16 L. R. A. (N. S.) 49, 69. And see note 8 Ann. Cas. 715; 13 Ann. Cas. 262; Ann. Cas. 1912D, 715; 1 Joyce, Inj. § 203; 22 Cyc. 1053. The cases are not in harmony, but Nielsen v. City of Albert Lea, 87 Minn. 285, 91 N. W. 1113, brings the case before us within the doctrine stated. A plaintiff who seeks a permanent injunction only, and can get and takes a temporary injunction giving him the same relief temporarily, is much in the position of one taking execution before judgment; and if he fails to get a judgment it is not harsh that he be required to pay the damage he has caused. There is nothing strained in holding, as is held in the line of cases cited above, that the value of services of counsel in defending the main action is an item of damage within the terms of the bond; and a contrary construction is permissible. The plaintiff is entitled to recover the reasonable value of the services of his counsel in defending the main suit.

[2] 2. On January 15, 1917, the building inspector of Minneapolis served notice on Pelkey to tear down his building and remove the débris. This order was made under authority of an ordinance of the city. The record does not show that anything further was done. The defendants now claim that this order is a bar to an action on the bond. We think this is not so. In a suit on the injunction bond the plaintiff in the injunction suit cannot relitigate the matters there involved. Terre Haute, etc., R. Co. v. Peoria, etc., R. Co., 182 Ill. 501, 55 N. E. 377;Nansemond Timber Co. v. Rountree, 122 N. C. 45, 29 S. E. 61;Revell v. Smith, 25...