Scholtz v. American Surety Co. of New York

• Decision Date: 03 March 1922
• Parties: WILLIAM G. SCHOLTZ et al., Respondents, v. AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellant
• Court: Idaho Supreme Court

206 P. 187

35 Idaho 207

WILLIAM G. SCHOLTZ et al., Respondents, v. AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellant

Supreme Court of Idaho

March 3, 1922

RESTRAINING ORDER-TEMPORARY INJUNCTION BOND ON RESTRAINING ORDER-RECOVERY ON BOND FOR COUNSEL FEES.

1. A restraining order granted under the provisions of C. S 6773, is an order granted for the purpose merely of suspending proceedings until it may be determined by the court whether any injunction should be granted, and is not to be considered an injunction pendente lite. Upon such determination it becomes functus officio.

2. The distinction between a restraining order and a temporary injunction is not necessarily indicated by the particular phraseology used in the order, but is to be determined by its purpose and effect under the circumstances existing in a given case.

3. The liability of a surety upon a bond for a restraining order is measured by the terms of his contract, and must be limited to such damages and reasonable counsel fees as may be sustained or incurred by the opposing party on account of the restraining order, and to be entitled to recover for attorney fees upon the bond supporting a restraining order, the defendant must take some affirmative action against the order before it has become defunct by operation of law.

4. Counsel fees may not be recovered on a bond for a restraining order for services rendered in opposition to an order to show cause, and not by virtue of the restraining order.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Reddoch, Judge.

Action upon a restraining order bond for attorney fees. Judgment for plaintiffs and order denying a motion for new trial. Reversed.

Order reversed, with instructions. Costs awarded to appellant.

W. B Davidson and E. J. Dockery, for Appellant.

The court erred in admitting evidence of attorneys' services rendered for plaintiff in resisting the complaint in the main action, upon which this action is based, and in not confining such evidence to services rendered by plaintiffs' attorneys in resisting the restraining order in said action alone. (Curtiss v. Bachman, 110 Cal. 433, 52 Am. St 111, 42 P. 910; San Diego Water Co. v. Pacific Coast Steamship Co., 101 Cal. 216, 35 P. 651; White Pine Lumber Co. v. Aetna Indemnity Co., 42 Wash. 569, 85 P 52; Collins v. Huffman, 48 Wash. 184, 93 P. 220; Lambert v. Alcorn, 144 Ill. 313, 33 N.E. 53, 21 L. R. A. 611; Thurston v. Haskell, 81 Me. 303, 17 A. 73; Lambert v. Haskell, 80 Cal. 611, 22 P. 327; Quinn v. Baldwin Star Coal Co., 19 Colo. App. 497, 76 P. 552.)

Kessler & Pizey and Elliott & Healy, for Respondents.

The distinction between a temporary restraining order, or interim restraining order, and a temporary injunction pendente lite, is indicated. (Joyce on Injunctions, p. 119, sec. 111; High on Injunction, 4th ed., sec. 3; 22 Cyc. 745; 14 R. C. L. 306, sec. 3; 12 2d Dec. Dig., title "Injunctions," sec. 150; Houghton v. Cortelyou, 208 U.S. 149, 28 S.Ct. 234, 52 L.Ed. 432; State v. Baker, 62 Neb. 840, 88 N.W. 124; State v. Graves, 82 Neb. 282, 117 N.W. 717; In re Sharp, 87 Kan. 504, Ann. Cas. 1913E, 460, 124 P. 532; Ex parte Grimes, 20 Okla. 446, 94 P. 668; Ex parte Zuccaro, 106 Tex. 197, Ann. Cas. 1917B, 121, 163 S.W. 579.)

Temporary restraining orders issue only where the court or judge deems it proper that the defendant should be heard before granting the temporary injunction. (C. S. 6773; Kerr's Code Civ. Proc. (Cal.), sec. 530; In re Sharp, supra; State v. Baker (Neb.), supra; Ex parte Grimes, supra; Parsons v. Mussigbrod, 59 Mont. 336, 196 P. 528.)

The restraint which the order purports to impose and not the name given to it determines its true name and character. (State v. Johnston, 78 Kan. 615, 97 P. 790.)

Even if the order in question could be considered as a mere temporary restraining order as authorized by sec. 6773, C. S., it was nevertheless an injunction as defined by sec. 6768. (MacWatters v. Stockslager, 29 Idaho 803, 162 P. 671; State v. Werner, 80 Kan. 222, 101 P. 1004; Miles v. Edwards, 6 Mont. 180, 9 P. 814; Montgomery v. Gilbert, 24 Mont. 121, 60 P. 1038; Prader v. Grim, 13 Cal. 585.)

The bond furnished by appellants indemnified respondents in the language of the statute and therefore clearly obligated the principal and surety to the payment of attorney's fees. The efficacy of the writ did not cease until the end of the hearing. (Miller v. Donovan, 13 Idaho 735, 13 Ann. Cas. 259, 92 P. 991; Miles v. Edwards, supra.)

Inasmuch as the only relief sought in the action brought by appellant Hamilton was the securing of an injunction, and the temporary restraining order issued therein was dissolved and the action dismissed, respondents are entitled to recover such reasonable attorney's fees as were necessarily incurred in dissolving the injunction, under the general head of damages, even in the absence of an express statute providing for allowance of "reasonable attorney's fees." (McDermott v. American Bonding Co., 56 Mont. 1, 179 P. 828; McClintock v. Parish (Okl.), 180 P. 689; Esselstyn v. United States Gold Corp., 69 Colo. 547, 196 P. 183; Vicksburg Water Works Co. v. City of Vicksburg, 99 Miss. 132, Ann. Cas. 1913D, 917, 54 So. 852, 33 L. R. A., N. S., 844; Littleton v. Burgess, 16 Wyo. 58, 91 P. 832, 16 L. R. A., N. S., 49; 12 2d Dec. Dig., title "Injunctions," sec. 252.)

BUDGE, J. Lee, J., concurs, Dunn, J., concurs in the conclusion. Rice, C. J., sat at the hearing, and took no part in the opinion.

OPINION

BUDGE, J.

This action was brought by respondents, to recover $ 1,000 for attorneys' fees incurred by them, upon a bond made and executed in that amount by appellant in the case of W. R. Hamilton v. The National Non-Partisan League et al., in the district court for Washington county.

The cause was tried to the court and a jury. Verdict was rendered in respondents' favor for $ 750, and judgment entered for said amount and costs. A motion for new trial was made and denied. This appeal is from the order denying the motion for new trial.

From the record it appears that on July 29, 1918, W. R. Hamilton brought an action in the district court for Washington county against The National Non-Partisan League et al., for the purpose of preventing Non-Partisan League candidates from being placed as candidates on the Democratic state election ticket, and that upon the application of the plaintiff an "order to show cause and restraining order" was issued by Hon. Isaac F. Smith, district judge, on said date, which reads in part as follows:

" . . . . It is . . . . ordered, that the defendants . . . . and each of them, appear before me in the Court Room . . . . in the City of Weiser, County of Washington, State of Idaho, on the 1st day of August, 1918, at the hour of 11 A. M. of that date, to show cause, if any, why they and each of them should not be perpetually enjoined and restrained from filing with the Secretary of State . . . . the name of (certain of the defendants) as candidates for and nominees of the Democratic Ticket of the State of Idaho, to be voted for at the Primary Election to be held on the first Tuesday in September, 1918, and that they and each of them be enjoined and restrained from filing the acceptance of the above-named persons or either of them, as nominees of the Democratic Ticket of the State of Idaho, to be voted for at said Primary Election.

"That the said . . . . Secretary of State . . . . be enjoined from receiving or filing the nomination of . . . . (certain of the defendants) . . . . or either of them, as nominees on the Democratic Ticket . . . . and . . . . from certifying to the County Auditors . . . . the name of . . . . (certain of the defendants), or either of them, as candidates on the Democratic Ticket to be voted upon at the Primary Election to be held . . . . on the Third day of September, 1918.

"It is further ordered that the said defendants . . . . and each of them . . . . do absolutely desist and refrain from filing with the Secretary of State . . . . the name of . . . . (certain of the defendants) . . . .; and that they and each of them be enjoined and restrained from filing the acceptance of the above-named persons or either of them, as nominees on the Democratic Ticket of the State of Idaho, to be voted for at said Primary Election.

"It is further ordered that the said . . . . Secretary of State . . . . be enjoined and restrained from receiving or filing the nomination of . . . . (certain of the defendants) . . . . or receiving or filing the acceptance of the above-named parties or either of them as nominees and candidates for any of said offices, on the Democratic Ticket . . . . to be voted for at the Primary Election to be held on the first Tuesday of September, 1918; until further order of this Court.

"The order of Injunction herein to be in force only after the giving of a good and sufficient Bond in the sum of $ 1,000 by the plaintiff to the defendants, conditioned that the said plaintiff will pay to the defendants any damages that they or either of them may sustain, if it be determined that the Order of Injunction herein is wrongfully granted."

Pursuant to the foregoing order, the bond now sued upon was filed on the same day. The bond, omitting the title of court and cause, is as follows:

"Whereas the above-named plaintiff has commenced an action and issued summons therein in the District Court of the Seventh Judicial District of the State of Idaho in and for the County of Washington, against the above-named defendants, and is about to apply for an Order to Show Cause and a Restraining Order in said action, against said defendants, enjoining and restraining them and each of them from the commission of certain...