State Ex Rel. The Meadow River Lbr. Co. v. Marguerite Coal Co. S.

• Decision Date: 25 October 1927
• Docket Number: (No. 5896)
• Citation: 104 W.Va. 324
• Court: West Virginia Supreme Court
• Parties: State ex rel. The Meadow River Lbr. Co. v. MargueriteCoal Co. et als.

104 W.Va. 324

State ex rel. The Meadow River Lbr. Co.

v.Marguerite Coal Co. et als.

(No. 5896)

Supreme Court of Appeals of West Virginia.

Submitted October 18, 1927.

Decided October 25, 1927.

1. Injunction Counsel Fees and Expenses in Resisting Preliminary Writ Cannot be Taken Into Account in Suit on Bond (Code, c. 133, § 10).

In an action on an injunction bond, counsel fees and expenses expended in resisting the issuing of a preliminary writ of injunction are not damages sustained from the issuance of the writ; and are therefore not in the condition of the bond, and cannot be taken into account in determining the amount of damages that are caused by it. (p.. 326.)

2. Same Plaintiff, Suing on Injunction Bond for Counsel Fees and Expenses, Must Show Injunction Was Sole Relief Sought, or Fees and Expenses Were Paid Solely to Procure Dissolution of Injunction (Code; c. 133, § 10).

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. (p. 327.)

Error to Circuit Court, Greenbrier County.

Proceeding; by the State, on the relation of the Meadow River Lumber Company, against the Marguerite Coal Company and others, by notice of motion for judgment on an injunction bond. Judgment for relator, and defendants bring error.

Reversed and remanded.

S. M. Austin, Ward & Sanders and Poffenbarger, Blue & Dayton, for plaintiffs in error.

Dice & Easley, for defendant in error.

Woods, Judge:

This is a notice of motion for judgment on an injunction bond. Several years ago the Marguerite Coal Company, and others, instituted a suit in chancery for the purpose of enjoining the Meadow River Lumber Company from cutting and removing the timber from a certain tract of land situate in Greenbrier County, known as the C. L. McClung land, it being their contention that they were entitled to have partition before any of the same was cut from said land, on account of an alleged claim of an undivided interest by them therein. An application to the circuit court of Greenbrier County for an injunction was unsuccessful; thereupon they applied to the Judges of this Court for such restraining order, and, while the same was at first refused, it was on later application awarded. The Meadow River Lumber Company was present, by counsel, at each of these hearings, resisting the granting of the prayer of the bill. The bond given in compliance with the order awarding the injunction was in the penalty of $10,000, and its condition was that the Marguerite Coal Company, and United States Fidelity & Guaranty Company, "shall well and truly pay all costs and damages as shall be incurred or sustained by the Meadow River Lumber Company, on account of the said injunction in case the same shall be dissolved." The injunction on a hearing was dissolved by the circuit court, which ruling was later affirmed by this Court, Marguerite Coal Co. v. Meadow River Lumber Co., 98 W. Va. 698.

The notice of the motion recited the awarding of the injunction, the bond, the; injunction's final dissolution, laid the damages in the sum of $9,066.37, as having been incurred and sustained on account of said injunction, and alleged a breach of the condition of the bond. Annexed to this notice was a bill of particulars, claiming $5,000 attorney's fees, certain incidental expenses claimed to have been incurred as the result of its issuance, and rental value of certain equipment alleged to have been kept idle by the injunction while it was in force. Items for the rental value of certain equipment, $3,400; certain incidental expenses, $144.55, were removed from the consideration of the jury by the court's in- structions and the striking out of the evidence in relation thereto, thereby leaving before the jury the item for attorney's fees, and certain incidental expenses paid said attorneys after the issuance of the order, amounting to $69.12. The matter of interest was also eliminated by the court's instructions. The verdict for $5,069.12...