Tatavich v. Pettine

• Decision Date: 14 June 1926
• Docket Number: No. 2859.,2859.
• Citation: 247 P. 840,31 N.M. 479
• Parties: TATAVICHv.PETTINE et al.
• Court: New Mexico Supreme Court

31 N.M. 479

247 P. 840

TATAVICH

v.PETTINE et al.

No. 2859.

Supreme Court of New Mexico.

June 14, 1926.

Syllabus by the Court.

Fees paid attorneys for services in bringing suit on an injunction bond are not a proper element of damages accruing by reason of the issuance of the injunction, and are not recoverable in such suit.

An expenditure for counsel fees, for services rendered distinctively in obtaining dissolution of a temporary injunction sued out ancillary to the principal relief sought, is recoverable as an element of damages in a suit on the injunction bond.

That the court lacked jurisdiction to grant a temporary injunction cannot be urged as a defense to the recovery of damages in a suit on the bond.

Appeal from District Court, Bernalillo County; Hickey, Judge.

Action by Kati Tatavich against Antimo Pettine and others on an injunction bond. From a judgment for plaintiff, defendants appeal. Modified, affirmed, and remanded, with directions.

Fees paid attorneys for services in bringing suit on an injunction bond are not a proper element of damages accruing by reason of the issuance of the injunction, and are not recoverable in such suit.

George C. Taylor and George R. Graig, both of Albuquerque, for appellants.

Downer & Keleher, of Albuquerque, for appellee.

WATSON, J.

By a proceeding instituted supplementary to, and two years after, final decree in a divorce suit, it was sought by one party to that suit to impress a trust upon certain property which had been awarded to the other party by said final decree. As ancillary to the main purpose of the proceeding, a temporary injunction was sought and obtained restraining disposition of the property until the further order of the court. To obtain the injunction, a bond was given by the appellants (defendants) in the usual form.

The temporary injunction was dissolved upon motion of the appellee (plaintiff). The suit under review was on the bond for damages sustained by reason of the wrongful issuance of temporary injunction. The court made these, among other, findings:

“V. That, in order to defend against said injunction, the plaintiff employed Downer & Keleher, of Albuquerque, N. M., as and for her attorneys, and compensated them in the sum of $150 for services rendered by them in procuring the dissolution of said injunction. That the services rendered by said attorneys were not incurred in defending the action generally, but were necessarily incurred in procuring the dissolution of the injunction; and that the dissolution of the injunction was the sole relief sought by the plaintiff, Kati Tatavich, in said cause. That no part of the services rendered by the said attorneys was rendered on the merits of the case, all services rendered being connected with the matter of procuring the dissolution of the said injunction.

VI. That the defendant Antimo Pettine failed, neglected, and refused to reimburse the said plaintiff for the said sum of money so expended and laid out for and on account of attorneys' fees, and that the said plaintiff was obliged to employ attorneys to file a suit against the said defendants and each of them for the purpose of enforcing the collection of said sum of $150, and became obligated to pay the said attorneys so employed, to wit, Downer & Keleher, for such purpose the sum of $100 for their services in enforcing the collection of said sum of $150.”

The correctness of these findings is not here questioned, and upon them judgment was entered for appellee in the sum of $250.

[1] Appellants first attack that part of the judgment based on finding VI. Their position is stated thus:

“Allowance of attorneys' fees in suit on bond, as costs or otherwise, is without legal authority.”

We think the objection is well taken. For the inclusion of such an item as an element of damages under the bond, appellee has been able to cite no authority, but contents herself with the argument that-

“if the appellee is not allowed to recover the money paid to counsel and enforce her claim for attorneys' fees, she is not being allowed the full amount she is entitled to under the contract specified in the bond.”

It is, of course, true that any party whose lawful right is denied, and who is thus compelled to bring suit to enforce it, suffers an injury in being put to the expense of employing counsel. Such an injury was suffered here. However, in the absence of statute or contract, we know of no authority for considering such injury as actionable. See Dame v. Cochiti Reduction & Improvement Co., 13 N. M. 10, 79 P. 296; A., T. & S. F. Ry. Co. v. Citizens' Traction & Power Co., 16 N. M. 163, 113 P. 813.

[2] Appellants next attack that part of the judgment based on finding V. Their position is stated thus:

“In suit on injunction bond, attorneys' fees may not be recovered as element of damages unless injunction is the sole relief sought.”

To this proposition they cite Mazon Estate, Inc., v. Carr et al., 26 N. M. 343, 192 P. 480. That decision is not to be so construed, although the expression therein regarding Wittich v. O'Neal, 22 Fla. 592, may be thought to give color to the contention. A reading of the statement of facts will show that the decision of the case did not necessarily involve the principle now urged. Further, the opinion adopts the rule laid down in High on Injunctions, § 1686, as follows:

“The true test with regard to the 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.”

While the rule is perhaps not fortunately expressed, no one can read the context and conclude that High entertained any such views as counsel now urge. The principle in Mazon Estate v. Carr, supra, is that, where the temporary injunction is ancillary to the main purposes of the suit, and it is not dissolved under direct attack by motion, but falls because the complaint will not withstand demurrer, attorneys' fees cannot be allowed as damages.

The general rule among those states which,...