Webb v. Beal

• Decision Date: 30 March 1915
• Docket Number: No. 1702.,1702.
• Citation: 20 N.M. 218,148 P. 487
• Parties: WEBBv.BEAL ET AL.
• Court: New Mexico Supreme Court

20 N.M. 218

148 P. 487

WEBB

v.BEAL ET AL.

No. 1702.

Supreme Court of New Mexico.

March 30, 1915.Rehearing Denied May 15, 1915.

Syllabus by the Court.

A defendant, by answering over, upon demurrer overruled, waives all objections to the petition of the plaintiff, except to the jurisdiction of the court and the failure of petition to state a cause of action.

Counsel fees paid for necessary services directed to procuring the dissolution of the injunction, when reasonable in amount, are held to be recoverable as damages upon injunction bonds conditioned in the ordinary terms to pay such damages as the obligee may sustain by reason of the injunction, if the same be dissolved.

Appeal from District Court, Chaves County; Richardson, Judge.

Action by John R. Webb against John T. Beal and others. From judgment for plaintiff, defendants appeal. Affirmed.

Roberts, C. J., dissenting.

A defendant, by answering over, upon demurrer overruled, waives all objections to the petition of the plaintiff, except to the jurisdiction of the court and the failure of petition to state a cause of action.

W. E. Rogers, of Roswell, for appellants.

J. D. Mell and James M. Dye, both of Roswell, for appellee.

HANNA, J.

Appellee instituted this suit in the district court of Chaves county, for damages in the sum of $500 on an injunction bond given by appellants to appellee in an earlier cause instituted in the same court. Appellee, in his complaint filed in the trial court, alleged that the appellants had wrongfully sued out an injunction to restrain him from continuing to tear down and injure a fence of the appellant Beal, and to restrain him from permitting his cattle to enter and graze upon the premises of the said Beal. The injunction was issued in the first cause referred to, upon appellant's furnishing a bond in the sum of $500, and the plaintiff in this cause below, appellee here, was ordered to show cause at Carlsbad, N. M., why said injunction should not be continued in force, which place was about 150 miles from appellee's home; that after a hearing at Carlsbad, upon a demurrer to the first complaint, which was sustained, the cause was continued for further hearing at Roswell, N. M., it being asserted by plaintiff below, appellee here, that in consequence of the issuance of said injunction he was compelled to keep his cattle under herd for a period of several months, and in order to procure the dissolution of the injunction he was compelled to employ, and did employ, counsel, to whom he paid fees in the sum of $300; that he was compelled to make frequent trips to Roswell, in addition to his said trip to Carlsbad, by reason of the necessity of his appearance in court in the matter of securing the dissolution of the injunction, occasioning an expense of about the sum of $75. The injunction bond given in the first cause referred to was in the usual form, conditioned that the appellant Beal would pay all sums of money, damages, and costs as should be adjudged against him if the injunction should be dissolved; the sureties thereupon being the other appellants Logan and Mundy. Upon the trial of the cause, the district court rendered a judgment for appellee against the defendants, appellants here, for the sum of $250, being $200 as reasonable fees for the attorneys necessarily employed in and about the dissolution of the temporary injunction, and the further sum of $50 as expenses necessarily incurred in and about the defense and dissolution of the injunction; and further finding against appellee here in the matter of his claim for damages on account of extra expense in and about the herding of his cattle. From which judgment an appeal was prayed and allowed to this court.

Appellants' first and second assignments of error are predicated upon the action of the trial court in overruling a demurrer to the complaint filed by appellee in this cause. The grounds of this contention are, so far as it is now necessary to consider them, that attorney's fees and expenses incurred in attending court to defend an injunction suit are not such elements of damages as are compensated by law; a similar contention being further made as to the element of damage alleged to exist by reason of the necessity for the herding of the cattle during the time that the injunction was in force.

A second demurrer was interposed to the first amended complaint, which was overruled by the court, which raised the proposition that the suit was prematurely brought, by reason of the fact that the appellant Beal had more than nine months' time after the institution of this cause of action within which to appeal to the Supreme Court from the judgment in the first cause referred to; or, in other words, that the suit upon the injunction bond should not have been instituted until the expiration of the period of one year within which the appeal from judgment might be sued out.

The third assignment of error is predicated upon the action of the court in sustaining appellee's motion to strike out certain paragraphs of appellants' answer. This assignment of error concerns the same legal propositions as the first two assignments herein referred to, and the same might also be said as to the fourth assignment of error, which is predicated upon the action of the trial court in admitting testimony offered by the plaintiff below as to his expenses in the first suit in the matter of attendance upon court, and as to sums paid for attorney's fees in the cause. The fifth and sixth assignments of error are predicated upon the judgment of the trial court in that judgment should not have been rendered for counsel fees and expenses of the plaintiff in attendance upon court.

[1] By appellee it is contended that the first two assignments of error are not available, because a defendant by answering over upon demurrer overruled waives all objections to the petition of the plaintiff, except to the jurisdiction of the court and the failure of petition to state a cause of action. This rule was followed by this court in the case of Baca v. Baca, 18 N. M. 63, 134 Pac. 212, though it may not be available by appellee in the present instance, by reason of the fact that a question would seem to have been raised going to the sufficiency of the complaint. It is not material to consider this technical objection, however, as the same propositions of law are involved in the consideration of the fourth, fifth, and sixth assignments of error. We will therefore consider the questions raised upon their merits, the essential question being: Did the court err in admitting testimony as to counsel fees and expenses incurred in connection with the dissolution of the injunction bond?

We are not unaware of the fact that there has been a great conflict of authority in the courts of this country upon this question. The federal courts have uniformly held against the right to recover for counsel fees expended in a case of this character.

There are a small number of our American states who have approved the doctrine of the federal courts in this respect. They are Arkansas,...