State, for Use of Hudson v. Nash

• Decision Date: 14 October 1913
• Parties: STATE, for Use of HUDSON, v. NASH et al.
• Court: West Virginia Supreme Court

79 S.E. 829

72 W.Va. 812

STATE, for Use of HUDSON, v. NASH et al.

Supreme Court of Appeals of West Virginia.

October 14, 1913

Submitted June 12, 1912.

Syllabus by the Court.

Counsel fees paid for services in a suit in which a temporary injunction is awarded only as ancillary and incidental to the main relief sought, no effort being made to secure its dissolution until final hearing of the cause upon the merits and other expenses not incurred on account of the injunction are not recoverable in an action on the injunction bond.

In a suit to remove cloud upon plaintiff's title to land, and to enjoin defendant from trespassing thereon, and from taking steps to redeem his title from forfeiture to the state, a temporary injunction was awarded. Held, that injunction was only ancillary to the main purpose of the suit, which was to quiet title.

Error to Circuit Court, Putnam County.

Action by the State for use of Mary Patton Hudson, against J. H Nash and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

Brown Jackson & Knight and J. H. Nash, all of Charleston, for plaintiffs in error.

Enslow, Fitzpatrick, Alderson & Baker, of Huntington, for defendant in error.

WILLIAMS J.

Plaintiff recovered judgment in the circuit court of Putnam county for $500, in an action upon an injunction bond executed by J. H. Nash and Lewis Barnhart for the Iguano Land & Mining Company, in a suit brought by it in the circuit court of Putnam county against Mrs. Mary Patton Hudson and others, for the purpose of canceling her claim of title to certain land, as constituting a cloud upon said company's title thereto, and to enjoin her from trespassing on the land, and from taking any steps to redeem the title claimed by her, which had been forfeited to the state. The injunction, as prayed for, was awarded in vacation, and the bond sued on was given. No effort was made to get rid of the injunction until the final hearing of the cause on its merits, at which time the chancellor granted the prayer of the bill, and canceled Mrs. Hudson's claim to the land, as constituting a cloud upon the plaintiff's title, and perpetuated the injunction. Mrs. Hudson appealed from that decree to this court, and procured a reversal of it, and a dismissal of the plaintiff's bill, and hence this action upon the injunction bond.

The judgment recovered is on account of fees paid by Mrs. Hudson to her counsel for services rendered in that cause. But she fails to distinguish how much, if any, she paid for services rendered in getting rid of the injunction. No effort was made to have it dissolved until the final hearing of the cause upon its merits. It was not a pure injunction suit, but a suit brought to remove cloud upon title, and the injunction was only ancillary or incidental thereto. Had it been a pure injunction suit, no doubt the whole of counsel fees would have been recoverable on the bond; the penalty of the bond being sufficient. It is well-settled law in this state that fees paid to counsel for services rendered in getting rid of an injunction are properly recoverable as damages in an action on the injunction bond. Levy v. Medford, 34 W.Va. 633, 12 S.E. 864; Kloak Bros. v. Corvin, 51 W.Va. 19, 41 S.E. 211; Bank v. Graham, 68 W.Va. 1, 69 S.E. 301; Tully v. Taylor, 67 W.Va. 585, 68 S.E. 379. But when injunction is not the sole relief sought, but is only ancillary and incidental to the main object of the suit, and no effort is made to procure a dissolution of the injunction until a final hearing of the cause upon its merits, and counsel fees are paid for entire services in the suit, they are not recoverable upon the bond. Tully v. Taylor, supra; 2 High on Injunctions (4th Ed.) § 1686; Riddle v. Cheadle, 25 Ohio St. 278; Curry v. Amer. Freehold, etc., Co., 124 Ala. 614, 27 So. 454; Lambert v. Alcorn, 144 Ill. 313, 33 N.E. 53, 221 L.R.A. 611.

The chief purpose of the suit in which Mrs. Hudson was enjoined was to clear the Iguano Company's title to land of a cloud, and the prayer of the company's bill that she be restrained from committing trespass, and from taking further steps to perfect her claim by redeeming from the state a forfeited title, was only incidental. 2 High on Injunctions (4th Ed.) § 1686; Tully v. Taylor, supra; Allport v Kelley, 2 Mont. 343; Disbrow v. Garcia, 52 N.Y. 654; Moriarity v. Galt, 125 Ill. 417, 17 N.E. 714. It does not appear that counsel rendered any services specially to get rid of the injunction, or that the same services which were rendered would not have been necessary, if no injunction had been awarded. The appeal to this court in that case was not to get rid of the injunction, which was only an incident in the case depending upon the question of title to the...