Woods v. Fambrough

• Decision Date: 10 August 1918
• Docket Number: No. 2134.,2134.
• Parties: WOODS et al.v.FAMBROUGH et al.
• Court: New Mexico Supreme Court

24 N.M. 488

174 P. 996

WOODS et al.

v.FAMBROUGH et al.

No. 2134.

Supreme Court of New Mexico.

Aug. 10, 1918.

Syllabus by the Court.

A finding that an injunction was wrongfully issued is conclusive on appeal, where no proper exception is taken thereto.

Nonjurisdictional questions, raised for the first time on appeal, will not be considered.

The right to recover attorney's fees necessarily paid in defending an injunction suit and obtaining a dissolution of the injunction is not affected by the fact that the suit is an independent proceeding, uncoupled with any other proceeding.

Appeal from District Court, Lincoln County; Medler, Judge.

Action by Alfred S. Woods and others against Sam B. Fambrough and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Right to attorney's fees paid in obtaining dissolution of injunction is not affected by fact that the suit is an independent proceeding.

G. W. Prichard, of Santa Fé, for appellants.

Ed Mechem, of Alamogordo, for appellees.

HANNA, C. J.

This is an appeal by Sam B. Fambrough, Henry Lutz, and E. H. Talbert from a judgment for $575 rendered against them and in favor of Alfred S. Woods, Samuel Woods, and James A. Cooper, in the district court of Lincoln county. The action was predicated upon the alleged wrongful issuance of an injunction, restraining the appellees from permitting their live stock to range upon the private lands of appellant Fambrough, or within four miles thereof. The complaint in the case at bar alleged facts tending to show that the temporary injunction procured by Fambrough was dissolved by the court and that appellees were damaged $500 paid as attorney's fees in defense of said injunction suit, $500 on account of being compelled to remove their sheep to other pasturing grounds, and $150 in costs and expenses incident to the defense of said injunction suit. The answer of the appellants denied that the injunction suit “was wholly dissolved, but state that said restraining order and injunction was sustained so far as it affected the private holdings or lands within the exclusive control of the said Fambrough,” and further denied that a final judgment had been rendered in said cause for the reason that in the opinion of the court in said cause the appellants were permitted to submit further proof as to the actual private holdings and land within the exclusive possession of the said Fambrough. The answer also denied that appellees suffered any damages, or that any were recoverable by them under the terms of the injunction bond. The case was tried to the court without a jury. The appellees introduced no evidence tending to show that the injunction had been dissolved or that it had been modified in any way. Their evidence was addressed solely to the proposition of damages, it being shown that on account of the issuance and service of the writ of injunction the appellees were required to move their live stock to other grazing lands, as a consequence of which they were obliged to employ and pay for the labor of three additional men, and that they expended the sum of $500 in the payment of attorney's services necessarily rendered in the defense of said suit. The appellants introduced in evidence the memorandum opinion of the trial court rendered in the...