Trester v. Pike

• Decision Date: 19 September 1900
• Docket Number: 9,266
• Parties: MILTON L. TRESTER ET AL. v. HANNAH PIKE
• Court: Nebraska Supreme Court

83 N.W. 676

60 Neb. 510

MILTON L. TRESTER ET AL. v. HANNAH PIKE

No. 9,266

Supreme Court of Nebraska

September 19, 1900

ERROR to the district court for Lancaster county. Tried below before HALL, J. Reversed.

Reversed.

Wolfenbarger & Williams, for plaintiffs in error.

George E. Hibner, contra.

OPINION

HOLCOMB, J.

Proceedings in the nature of a creditor's bill were instituted for the purpose of fixing a lien upon certain real estate, the legal title to which was in the wife of the judgment debtor and to subject the property to sale to satisfy the judgment debt. At the time the proceedings were instituted the plaintiff applied for and obtained a temporary restraining order, restraining the defendants in the suit, including the wife of the judgment debtor, from in any way disposing of the real property which it was sought to subject to the payment of the debt. Upon the issuance of the restraining order, and in pursuance of the direction of the district court in that regard, an undertaking was executed by the plaintiffs in error, conditioned that the obligors "shall pay to the defendants all damages which they may sustain by reason of said injunction, if it be finally determined that the said injunction ought not to have been granted." In the restraining order it was further ordered that the application for a temporary injunction be set for hearing on a day therein named, which was a short time in the future. No further proceedings were had with reference to the allowance of a temporary injunction, and no motion made to dissolve or vacate the restraining order theretofore issued. The restraining order was by all parties permitted to remain in force as issued till the final trial of the case. When the case was finally tried, judgment was rendered in favor of defendants upon findings that there was no equity in the bill, and that the property belonged to the person in whom rested the legal title. A suit was then instituted upon the undertaking, given in pursuance of the issuance of the restraining order, for damages alleged to have been sustained by reason of its wrongful issuance, and upon the trial damages were recovered in the sum of $ 368. In the trial the right of the plaintiff to recover attorney's fees paid out, and for which the plaintiff became liable in the creditor's bill suit, was sharply denied by the obligors on the undertaking mentioned.

The court, in its instruction to the jury, stated, in substance that the injunction part of said suit was intermingled with and dependent upon, the issues touching the real ownership of the property in controversy, so that it became a part of the main case, and that the plaintiff was entitled to recover, as an element of damages, on the injunction bond, "such a sum as you determine from the evidence was a fair and reasonable charge for the services of her attorney in trying said action in this court." The ruling of the trial court upon this branch of the case, it is contended, is erroneous. By the undertaking, the obligors bound themselves to pay all damages sustained by the wrongful issuance of the temporary restraining order. Were counsel fees incurred confined solely to obtaining a dissolution of the order thus issued, the same would doubtless be recoverable. The third paragraph of the syllabus in Gyger v. Courtney, 59 Neb. 555, 81 N.W. 437, is as follows: "Where the hearing of an application for a temporary injunction has been unreasonably postponed, attorney's fees necessarily incurred in effecting a dissolution of a restraining order are a proper element of damage, in case it is determined that the restraining order should not have been allowed." Says SULLIVAN, J. in the opinion: "The office of a restraining order is to prevent action on the part of the defendant until both parties can be heard on the application for a temporary injunction. The practice being to hear such applications at the earliest practicable moment, there will, ordinarily, be no occasion for a motion to dissolve the restraining order. But if the hearing of the application for a temporary injunction be unreasonably postponed, as it was in this case, we think the party on whom the restraint has been imposed is justified in moving to dissolve the order, and that all reasonable expense incurred in the matter, including attorney's fees, may be recovered in an action on the bond." A more extended discussion and consideration of the object and purpose of a restraining order, than in the case last mentioned, will be found in State v. Wakeley, reported in 28 Neb. 431, wherein a restraining order was clearly distinguished in its office from a temporary order of injunction. In that case it is said: "It is very clear that the legislature never intended to give the force and effect to a restraining order which attaches to an injunction when regularly allowed. It simply suspends proceedings until an opportunity can be given for the parties to be heard, and upon that hearing having been had, and a decision rendered upon the application, the whole force of the restraining order ceases by its own limitation." Can it be said in a case of this character that the obligors undertook to pay as damages, in case the restraining order was wrongfully issued, attorney's fees incurred in the trial of the main case? It seems to us not; that this is in effect enlarging the liability which they assumed at the time of the execution of the undertaking. The...