State ex rel. Citizens' Nat. Bank v. Graham

Decision Date18 October 1910
Citation69 S.E. 301,68 W.Va. 1
PartiesSTATE ex rel. CITIZENS' NAT. BANK v. GRAHAM et al.
CourtWest Virginia Supreme Court

Submitted September 11, 1908.

Syllabus by the Court.

The inclusion of 10 per cent. damages on the principal and interest of a money judgment and costs from the date of the judgment to its dissolution, on the aggregate of principal interest, and costs, does not bar a recovery of counsel fees spent in defense of an injunction in an action on an injunction bond with condition to pay the judgment and costs and "also such damages as shall be incurred or sustained by the person enjoined."

In an action on an injunction bond, with condition to pay a judgment and costs, "and also such damages as shall be incurred or sustained by the person enjoined, in case the injunction be dissolved," reasonable counsel fees for service in the Supreme Court, as well as in the circuit court, may be recovered.

The fact that the amount of a judgment collected by execution from the judgment debtor exceeds the penalty of a bond given under an injunction against the judgment will not preclude recovery of counsel fees for services in procuring a dissolution of the injunction in an action on such bond.

(Additional Syllabus by Editorial Staff.)

Costs are awarded by each court in the proceeding before it, and are legal fees allowed by law computable from the record, whereas attorney's fees are extrinsic to the record, not to be found from it, but dependent on facts dehors the record.

Error from Circuit Court, Wirt County.

Action by the State, on the relation of the Citizens' National Bank, against R. B. Graham and other. There was a directed verdict for defendants, and relator brings error. Reversed and remanded.

V. B. Archer and William Beard, for plaintiff in error.

Walter Pendleton, for defendants in error.


As will appear in Graham v. Citizens' National Bank, 45 W.Va. 701, 32 S.E. 245, that bank had two judgments in its favor recovered in actions at law, one against R. B. Graham and D. A. Bumgarner, and the other against R. B. Graham and M. M. Dent, and that Graham brought an injunction suit against the enforcement of executions on the judgment and obtained an injunction against those executions which was dissolved by decree of the circuit court, and that that decree was affirmed by this court. In that case Graham, Bumgarner, and Virginia E. Sayers gave an injunction bond in the penalty of $1,600, conditioned, in case of a dissolution of the injunction, that Graham should pay the judgments and such costs as might be awarded against him, "and also such damages as may be incurred or sustained by the defendant." Upon this bond an action of debt was instituted in the circuit court of Wirt county for recovery of damages on account of fees of counsel in defense of the injunction, which resulted in the exclusion by the court from the jury of the plaintiff's evidence, and a verdict for the defendant by direction of the court. The bank sued out the writ of error which we now decide.

A plea called a plea of res judicata was allowed to be filed. This plea made the point that the circuit court on dissolving the injunction decreed that the bank recover the amount of the two judgments with interest and costs of injunction and 10 per cent. damages as provided by statute from the date of the injunction to the date of dissolution, and that on execution the same had been paid. The theory of this plea is that the inclusion of the 10 per cent. damages in the dissolution decree is a bar as res judicata against any further recovery of damages under the bond on account of the injunction, no matter what the cause of such damages, and that there can be no recovery of counsel fees necessarily expended in defense of the injunction. The 10 per cent. damages are the damages provided for in section 12, c. 133, Code 1906. It requires a circuit court, on dissolving an injunction against a money judgment, to aggregate principal, interest, and costs, and on the total sum to give damages at 10 per cent. per annum from the time the injunction took effect until its dissolution. That section says that such damages are "in lieu of interest." I need go no further than to use this language of the statute by saying that the damages here meant are in lieu of interest, a compensation for the injury done by the injunction for its delay of payment to the creditor, not damages arising from other causes not shown by the record, dependent on facts outside of it, like pay for counsel for service in defense of the injunction. The very letter of the statute says so. It has not the slightest reference to damages accruing from expenditure in reasonable, necessary counsel fees, or other cause extrinsic to the record. Section 10, c. 133, requires the bond to be conditioned to pay the judgment or decree. What decree? That decree made on dissolution, because section 12 makes a new judgment or decree composed of principal, interest, and costs and 10 per cent. damages. That 10 per cent. is a part of the decree, and is covered by the clause requiring payment of the judgment or decree, and is not the "damages" meant by that other provision of section 10 demanding that the bond shall be to pay, in addition to the judgment or decree and costs, "also such damages as shall be incurred or sustained by the person enjoined" by reason of the injunction. It is the same judgment increased by 10 per cent. This is an independent clause designed to repair any damage from causes unknown to the record, not ascertainable or computable from it, such as counsel fees or other proper demand. The court dissolving an injunction has no power or means to ascertain such damages. What does it know about counsel fees or other expenditure? And, of course, you could not say that its decree would pay damages which it could not ascertain. Further, it would be wholly unreasonable to think that the Legislature meant to limit all damages, howsoever arising, to 10 per cent. on the debt. That is no measure of such damages. That clause requiring bond for "such damages as shall be incurred or sustained," using both words, is broad and remedial, and is designed to cover any damages produced by the injunction, proper under the law. The construction given by the plea would defeat the statute's purpose, and emasculate it and the bond of efficacy. The point is made that the appeal bond will cover these damages. Not so. The damages covered by an appeal bond are those awarded by the appellate court under Code 1906, c. 133, § 10. Hutton v. Lockridge, 27 W.Va. 428, and Cardwell v. Allen, 28 Grat. (Va.) 184, cited with other cases in 1 Va. & W.Va. Ency. Dig. 521. So that plea setting up such a bar is bad, and was improperly allowed as to that. The case of Claytor v. Anthony, 15 Grat. (Va.) 518, seems to be relied on, in this connection, by both sides. I do not think it can help the defense.

Judge Lee says that the injunction bonds involved were taken under the Revised Code of 1819. If taken under chapter 71, § 75, of that Code, I remark that the section did not call for a bond to pay damages, but only to pay the money and tobacco, and costs. If taken under section 114, c. 66, 1 Rev. Code 1819, I remark that the bond was required to be for payment of money tobacco, and costs and such damages "as shall be awarded against him." What damages are here meant? They are damages to be awarded by the court. And what damages are they? This is answered by section 61, c. 66, 1 Rev. Code 1819, which required that damages be paid at 10 per cent. per annum on the money judgment. As I have above stated, that was damages to be included in the execution, and was only compensation for delay of payment. It was damages "awarded" by the court in the case from the record, and did not mean damages foreign to the case, dependent on outside evidence. Claytor v. Anthony cannot be held as deciding that the damages standing in lieu of interest, computable by the record from the judgment, are those damages to be ascertained in another suit for attorney's fees or other cause. Note that that case was a suit on the bond, and not for counsel fees or for any cause of damages outside the record. But it was for recovery of the 10 per centum damages in lieu of interest required by the Code of 1819 to be incorporated in the...

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