State Ex Rel. Kloak Bros. v. Petitioner

• Decision Date: 08 March 1902
• Citation: 51 W.Va. 19
• Court: West Virginia Supreme Court
• Parties: State ex rel. Kloak Bros. & Co. v. Corvin et als.

51 W.Va. 19

State ex rel. Kloak Bros. & Co.

v.Corvin et als.

Supreme Court of Appeals of West Virginia.

Submitted January 20, 1902.

Decided March 8, 1902.

1. Injunction Bond Counsel Fees.

Reasonable counsel fees may be included in estimating the damages in an action on an injunction bond, when the injunction has been improperly or wrongfully sued out, and the counsel fees were paid, or agreed to be paid, for procuring the dissolution of the injunction, (p. 22).

2. Injunction Personal Property Promissory Notes.

A bill to enjoin a sale of personal property under a deed of trust, securing the payment of non-negotiable promissory notes, given for the purchase money of the property, alleging also that the plaintiff therein had refused to accept the property under the contract and had caused the same to be sold under attachment proceedings and purchased it, is essentially and primarily a bill for injunction, although it prays a rescission of the contract of sale and the injunction having been dissolved, counsel fees are allowable as part of the damages in an action on the bond. (pp. 22, 23).

3. Damages on Bond What Included.

In such case, money actually and necessarily paid out for traveling expenses and other legitimate purposes, in procuring the dissolution of the injunction, should be included in the damages, but nothing should be allowed as compensation for loss of time nor for the detention of the property, (p. 24).

4. Issues on Pleas No Judgment Until Trial.

When in a joint action upon a joint, or joint and several, demand, there has been service of process on all the defendants, in a case in which an order for an inquiry of damages is required, and the plaintiff has filed with his declaration the affidavit provided for in section 46 of chapter 125 of the Code, and one of the defendants has not appeared, but the others have appeared and filed pleas accompanied by counter affidavits as provided in said section, there can be no final judgment against the defendant in default until after the determination of the issues on the pleas. The judgment by default is depend- ent on the result of the trial of the issues joined, and the final judgment must be joint, (pp. 25, 26).

5. Plea Non-Damnificatus When Proper.

The plea non damnificatus is only proper when the condition of the bond declared on is to indemnify and save harmless. In an action on an injunction bond it cannot be filed, for the condition of the bond is to pay costs and damages, affirmative acts. (p. 26).

6. Injunction Res Adjudicate.

In such action, a plea "that if the plaintiff was damaged and injured in any wise by reason of any matter or thing in the said declaration complained of it was by reason of its own wrong and default" is bad; for that the injunction was wrongfully or improperly sued out is then res judicata, (p. 28).

Error to Circuit Court, Mercer County.,

Action by the State for the use of William Kloak against J. L. Corvin. Judgment for defendant, and plaintiff brings error.

Reversed.

W. W. McClaugherty, for appellants. Harold A. Ritz, for appellee.

Po f f e n b ar g er, judge:

This is a writ of error to a judgment of the circuit court of Mercer County in an action of debt on an injunction bond in which the State of West Virginia sues at the relation and for the benefit of Win. Kloak, Aug. Kloak and Louis Schneider, partners doing business as Kloak Bros. & Co., the defendants being J. L. Corvin and Mary P. Atkinson, principal and sureties, respectively, in the injunction bond. The court instructed the jury upon the trial that the evidence in the case was insufficient to support a verdict for the plaintiff and that they should find for the defendant and the jury found accordingly.

It is necessary to a proper understanding of the positions taken by opposing counsel in the case that a short statement be given, showing the nature of the chancery suit in which the injunction was sued out and the bond in question given. On the 14th day of October, lcS97, Corvin contracted to purchase from Kloak Bros. & Co. a lot of saloon and bar fixtures at the price of six hundred dollars of which one hundred and fifty dollars was to be paid in cash and the balance in monthly install- merits of thirty-seven dollars and fifty cents each, the notes to bear interest and to be secured by first lien upon the property and the goods were to be shipped on or about October 16, 1897. The one hundred and fifty dollars was paid on the 14th and 15th clays of October, 1897, and on the 30th day of October,

1897, a deed of trust was executed by Corvin conveying the property to Frank M. Darst, trustee, to secure the payment of the notes given for the balance of the purchase money. Under this deed of trust the trustee advertised the property for sale on the 12th day of March, 1898, and on the 9th day of March,

1898, an injunction was awarded Corvin restraining the trustee from making the sale. The grounds for the injunction set forth in the plaintiffs bill were that the goods were not shipped until about the 1st of November, 1897, and that they were not of such material and workmanship as were provided in the contract. It was further alleged that when the fixtures arrived Corvin promptly declined to receive them and to make any further payments and notified Kloak Bros. & Co. of their declination to accept them and to pay the balance of the purchase- money, and also that Corvin had then attached said property and caused it to be sold to satisfy his claim and judgment for three hundred dollars damages at which sale Corvin became the purchaser. Such proceedings were had in said chancery suit that the injunction was dissolved and the bill dismissed for want of equity on the 13th day of May, 1898, and this suit was brought on the 26th day of June, 1899. In the declaration the amount demanded is itemized as follows: Forty-eight dollars and sixty cents costs in the chancery suit, one hundred dollars attorney's fees necessarily incurred, thirty dollars laid out and expended as traveling expenses, ten dollars for loss of time by reason of the injunction and sixty dollars damages sustained by reason of having been kept out of possession of the property from March 12, 1898 until June 20, 1898. On the first trial which was had on the 16th day of February, 1900, the jury found for the plaintiff in the sum of one hundred and thirty-eight dollars and ten cents, but the court being of opinion that the verdict was for a greater sum than was warranted by the evidence required the plaintiffs to release twenty dollars on pain of setting aside the verdict and, the plaintiffs refusing, the verdict was set aside. On the 15th day of May, 1900, another trial was had and the court, at the instance of the defendant and over the objec- tion of the plaintiffs, gave the following instruction: "The court instructs the jury that the evidence in this case is insufficient upon which to found a verdict for the plaintiffs and they shall find for the defendant, J. L. Corvin." And, in pursuance of that instruction, the jury so found and the plaintiffs, having taken several exceptions, moved the court to set aside the verdict and grant a new trial which motion was overruled and judgment for the defendant given.

Much of the argument relates to the question, whether counsel fees may he recovered in the action on the theory that they constitute an element of damages. As has been seen, the largest item sought to be recovered is one hundred dollars which is alleged to have been necessarily expended in the employment of counsel procuring the dissolution of the injunction. In resistance of this claim it is contended that the injunction was only ancillary or auxiliary in its nature, the primary object of the suit having been something other than the mere prevention of sale under the deed of trust. This defense is based upon the doctrine in High on Injunctions, s. 1686 that "The true test with regard to allowance of counsel fees as damages would seem to be, that if they are necessarily incurred in procuring the dissolution of the injunction, when that is the sole relief sought by the action, they may be recovered; but if the injunction is only ancillary to the principal object of the action and the liability for counsel fees is incurred in defending the action generally, the dissolution of the injunction being only incidental to that result, then such fees cannot be recovered." When this distinction should be applied is a, matter of some difficulty, but it is certainly not clearly applicable here. The cases cited by the author are all very different in their nature from this one. Where the principal purpose of the suit was to adjudicate a question of title and an interlocutory injunction was obtained but no motion was ever made or argued for its dissolution, where the principal contest at the hearing was not with reference to the injunction but concerning a question of title, where no motion was made to dissolve and the fees proven were for the preparation and management of the case upon the final hearing and where it did not appear that the injunction rendered the trial of the case more difficult than it otherwise would have been, courts have refused to allow counsel fees to be considered as elements of damages. High on Injunctions, s. 1686. While the prayer of the bill in the cause in which the injunction bond in question here was given was that the deed of trust be set aside and held for naught, that the contract be rescinded and that the sale be inhibited and enjoined, it is manifest that the prevention of the sale of the property was the principal if not the sole purpose and object of the suit. It is impossible to conceive of a case in which a sale may be enjoined without a showing of some reason or ground for so doing. The allegations of this bill amount to nothing more than a statement of facts constituting grounds for the enjoining of the sale. They show that the trust deed creditor, by failure to comply with the...