State Ex Rel. Perry v. Adkins
| Decision Date | 23 April 1935 |
| Docket Number | No. 8093.,8093. |
| Citation | 179 S.E. 816 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. PERRY. v. ADKINS et al. |
Syllabus by the Court.
"When counsel fees and personal expenses are sought to be recovered as damages on an injunction bond, it is incumbent on the plaintiff to show either that injunction was the sole relief to which the suit pertained, or that the fees and expenses were paid out solely for the purpose of procuring a dissolution of the injunction as distinguished from expenditures for the hearing of the principal issues involved in the case." State ex rel. Tully v. Taylor, 67 W. Va. 5S5, 68 S. E. 379.
Error to Circuit Court, Cabell County.
Action by the State, on the relation of J. A. Perry, against E. G. Adkins and others. Judgment for plaintiff, and defendants bring error.
Judgment reversed, and judgment rendered in accordance with opinion.
Daugherty & Daugherty, of Huntington, for plaintiffs in error.
F. W. Riggs, of Huntington, for defendant in error.
Defendants, E. G. Adkins, A. Stout and Daisy Short, have obtained this review of a judgment against them for $495.95 in favor of the State of West Virginia which sues for the benefit of J. A. Perry, herein referred to as plaintiff. The court acted on an agreed statement of facts, a jury being waived.
The action is based on an injunction bond executed by the said defendants, in the chancery cause of Cora Adkins v. J. A. Perry and W. W. Gladwell, trustee, lately pending in the circuit court of Cabell County.
In the said cause Cora Adkins attacked the validity of a certain deed of trust purporting to have been executed by herself and her husband, E. G. Adkins, in favor of J. A. Perry. She asserted that she had not executed it On her motion there was awarded a temporary injunction enjoining sale of the property under the deed of trust until further order of court The chancellor required of her an injunction bond of $500.00. On final Hearing in the circuit court, the temporary injunction was dissolved and the bill dismissed. There was affirmance in this Court on appeal. Adkins v. Perry (W. Va.) 174 S. E. 377.
The judgment at bar embraces all of the costs and expenses, including attorneys* fees, incurred by Perry, principal defendant in the chancery cause, both in the trial court and in this Court. The correctness and propriety of the several amounts are not brought in question. The point for determination is whether, on the facts agreed, the plaintiff is entitled to recover the total amount of the said expenditures or any part thereof.
The rule is thus stated: "When counsel fees and personal expenses are sought tobe recovered as damages on an injunction bond, it is incumbent on the plaintiff to show either that injunction was the sole relief to which the suit pertained, or that the fees and expenses were paid out solely for the purpose of procuring a dissolution of the injunction as distinguished from expenditures for the hearing of the principal issues involved in the case." State ex rel. Tully v. Taylor, 67 W. Va. 585, 68 S. E. 379. Consult State ex rel. Meadow River Lumber Co. v. Coal Co., 104 W. Va. 324, 140 S. E. 49, 55 A. L. R. 452.
It is the position of the plaintiff that the suit was essentially a bill of injunction; that it was necessary for the case to be fully developed in order that the trial court would have proper basis for determining whether the injunction should be perpetuated or dissolved; that by the supersedeas awarded by this Court on motion of Cora Adkins, the injunction was continued in force pending appeal; that all of the plaintiff's costs and expenditures in both courts pertained primarily to the dissolution of the injunction and therefore he is entitled to recover on the bond all expenditures incurred and damages.
On the other hand, the defendants contend that the injunction was merely ancillary to the main purpose, namely, cancellation of the deed of trust, and therefore the plaintiff's recovery should not extend beyond outlay, if any, incident to efforts to obtain dissolution of the injunction, and pertinent damages, if any.
The enjoining of the sale could not, in itself, have been justified. Such action was merely incident to the end sought. The primary purpose of the suit was to determine whether the deed of trust was valid. Attorneys' fees and expenses of taking depositions were incurred by the plaintiff herein in pursuance of his efforts to sustain the trust. He made no motion to dissolve the injunction. It...
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