State v. Medford

• Decision Date: 31 January 1891
• Citation: 34 W.Va. 633,12 S.E. 864
• Parties: State, to Use of Levy, v. Medford et al.
• Court: West Virginia Supreme Court

12 S.E. 864

34 W.Va. 633

State, to Use of Levy,

v.Medford et al.

Supreme Court of Appeals of West Virginia.

Jan. 31, 1891.

Injunction—Dissolution—Damages.

A reasonable amount paid as compensation to counsel as an item of the expense necessarily incurred in procuring the dissolution of an injunction wrongfully obtained may be recovered in a suit for damages upon an injunction bond. (Syllabus by the Court.)

Error to circuit court, Cabell county. Ira J. McGinnis, for plaintiffs in error.

Campbell & Holt, for defendant in error.

Holt, J. This was an action of debt brought on the 22d day of October, 1889, in the circuit court of Cabell county by the state for the benefit of Joseph Levy againstThomas Medford and G. E. Thorn-burg on an injunction bond. Defendants' demurrer to the declaration was overruled, and thereupon defendants pleaded "conditions performed, " "conditions not broken, " and"non damniScatus." Issues were joined on these pleas, and by consent a jury was waived, and the matters of law and fact were submitted to the judgment of the court, and, the court having heard the evidence, found for plaintiff and assessed the damages at $200. Defendants below then moved the court to set aside the finding, and grant them a new trial, but the court overruled the motion, and gave judgment for plaintiff for the use of Joseph Levy. To this ruling defendants excepted, and tendered their bill of exceptions, which was signed by the judge and made part of the record, and the case is now here on writ of error allowed defendants. The facts are as folio ws: In the month of February, 1887, Thomas Medford and wife brought their bill of injunction in the circuitcourt of Cabell county against Joseph Levy and wife to abate and restrain a nuisance created and kept up by Levy and wife, to the serious annoyance of plaintiff, by defendants' improper occupation of a certain tenement in the city of Huntington. The injunction was granted, but not to take effect until Medford gave bond, with approved security, in the penalty of $200, conditioned according to law. Accordingly Thomas Medford, with G. E. Thornburg as his surety, executed the injunction bond, dated February 18, 1887, in the penalty of $200, conditioned, among other things, that the said Thomas Medford would pay all such costs as may be awarded against him, and also such damages as should bo sustained by any person in case said injunction should be dissolved. The court below made the injunction perpetual, and appeal was taken, and this court reversed the decree, dissolved the injunction, and dismissed the bill. Then this suit was brought for damages sustained by Levy by reason of said injunction. On the trial he proved that for defending the injunction and finally obtaining its dissolution he paid his attorney the sum of $300; that such fee was reasonable, and the services rendered worth that amount; and the question here presented is, is the defendant in the injunction entitled to receive a reasonable amount paid by him as counsel fees necessarily expended in getting rid of the injunction? No decision or discussion of the point has been found in any case decided by this court, or by the court of appeals of Virginia prior to the formation of this state, so that in order to decide it we must look to our statute, the reason and justice of the thing, and to the decisions on the point elsewhere. There can be no question that it was necessary for Levy to employ counsel and pay them a reasonable compensation in order to get rid of the injunction, to take the case to the appellate court, and have the injunction dissolved, and that such payment was the natural, direct, proximate, actual result of Med-ford's injunction. He applied for the injunction, knowing that it could not and would not be granted on any other terms; hen<.e class="ldml-entity">the court made it a condition precedent that he should give a bond, with good security, binding them to pay all such costs as might be awarded against him, and also all such damages as should be incurred or sustained in case the injunction should be dissolved; and he gave it under his hand and seal. Therefore he bound himself by contract to pay them if such damages are covered by the bond. It cannot be the taxable attorney's fee, for that is a part of the taxable costs recovered by defendant Medford. the payment of which is expressly provided for as costs in the injunction bond. What Levy had to pay his attorneys to get the decree below, making perpetual a wrongful injunction, reversed, and the injunction dissolved, was the direct and proximate result of the operation of the injunction itself, —as much so as a surgeon's bill is a result of the negligence of a railroad which makes it necessary to call one in to attend a wounded passenger. But it is said it is not allowed to enter into the estimation of damages in any of the common-law actions or in any of the Code substitutes. The...