Opinion
January 27, 1956. Rehearing Denied March 9, 1956.
Appeal from the Circuit Court, Estill County, S.H. Rice, J.
Redwine Redwine, M.C. Redwine, Winchester, for appellants.
John W. Walker, Irvine, for appellees.
This is a motion for an appeal from a judgment of the Estill Circuit Court, Hon. S.H. Rice, Judge, which denied appellants any relief on their claim on an injunction bond for $775 damages they allege to have sustained by reason of an injunction.
Wise brought suit against Noland to quiet title to a tract of land in Estill County, to recover damages for timber cut and to enjoin Noland from trespassing on the land in dispute. This court held Wise failed to establish title and his action was dismissed. Noland v. Wise, Ky., 259 S.W.2d 46.
There was no motion by Noland to dismiss the temporary injunction and it does not appear in the record he incurred any expense by reason of the injunction which can be separated from his expense in defending the suit Wise brought against him to quiet title. Here, the right to the injunction was determined solely by the decision on the merits, hence Noland's attorney's fees, as well as the expense in preparing his defense, are expenses incurred in defending his title in the original action and are not recoverable on the injunction bond. Begley v. Ferra, Ky., 239 S.W.2d 468.
Motion for an appeal is overruled and the judgment is affirmed.