Opinion
No. 5184.
September 26, 1929.
APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Dana E. Brinck, Judge.
Action on an injunction bond. Judgment for defendants. Reversed in part, sustained in part and remanded, with instructions.
L.E. Glennon, for Appellants.
In the case of Reed v. Brandenburg, 72 Or. 435, 143 P. 989, the court said: "The trouble given plaintiff and the time and money expended by him in procuring the vacating of the injunction are legitimate items of damage."
The statement above quoted is made in connection with the discussion of items other than attorney's fees, which latter item is discussed in another paragraph of the opinion.
The only other items of damage claimed are those for court costs and attorney's fees, both of which, I think, it will be conceded may be proper items of damages recoverable under an injunction bond. ( Ferrell v. Coeur d'Alene St. Joe Transportation Co., 29 Idaho 118, 157 P. 946; C. S., sec. 6772.)
This court has already held that the injunction in question was wrongfully issued and should have been dissolved upon motion therefor. ( Daniels v. Adair, 38 Idaho 130, 220 P. 107.) Following that decision the trial court made an order dissolving the injunction. No appeal was taken from that order, which is an appealable order, so that the same became final upon the expiration of the time for appeal.
"An instruction which directs a verdict has the same effect as an order sustaining a motion for nonsuit, in that it admits the truth of the adversary's evidence and every inference of fact that may be legitimately drawn therefrom." (Clark's Idaho Dig., p. 1346, sec. 132; Pocatello Security Trust Co. v. Henry, 35 Idaho 321, 27 A.L.R. 337, 206 P. 175; Moody v. Morris-Roberts Co., 38 Idaho 414, 226 P. 278; Smith v. Marley, 39 Idaho 779, 230 P. 769.)
E.H. Casterlin and K.W. Whitcomb, for Respondents.
An order dissolving an injunction is an appealable order and not a judgment or decision by which the rights of the parties to the action are finally determined. (C. S., secs. 6826, 7152; 32 C. J. 448 (note 76), 449 (notes 83 and 84); 33 C. J. 1061; Harlow v. Mason, 98 Kan. 353, 157 P. 1175, 1176; Herring v. Wiggins, 7 Okl. 312, 54 P. 483; Fresno Canal etc. Co. v. People's Ditch Co., 174 Cal. 441, 163 Pac. 497; Inman v. Round Valley Irr. Co., 41 Idaho 482, 485, 238 Pac. 1018.)
Appellants sued respondents on an injunction bond for damages as follows: $500 attorney's fees, $13 court costs and $75 for personal expenses of appellants in attending a session of the trial court in an unsuccessful endeavor to have the injunction dissolved.
The trial court directed a verdict in favor of the respondents.
Respondents urge that this action was untimely because there has been no final determination of the main action in which the injunction was issued and that a final determination of the improper issuance of the injunction is a condition precedent to recovery of damages on the bond. ( Dougal v. Eby, 11 Idaho 789, 85 P. 102.)
A writ of prohibition was sued out to this court to restrain the trial court from punishing appellants for contempt of court in not complying with the injunction. The writ was made permanent, the court holding that the injunction should not have issued. ( Daniels v. Adair, 38 Idaho 130, 220 P. 107.)
This was in effect a final determination that the injunction in question was illegal and immediately fixed the liability under the injuncton bond. ( Irwin v. Morrow, 19 Ala. App. 115, 95 So. 496.) Hence the present action was not premature.
The statute authorizes the recovery of reasonable counsel fees. (C. S., sec. 6772.) The only evidence of the fees in question being reasonable was stricken from the record. Such action by the trial court is not assigned as error. Without such evidence there was nothing for the jury to base a verdict on in this particular. ( Whitney-Central Nat. Bank v. Sinnott, 136 La. 95, 66 So. 551.) In Miller v. Donovan, 13 Idaho 735, 13 Ann. Cas. 259, 92 P. 991, 992, there was evidence in the record of the reasonableness of the fee.
There is nothing in New Orleans etc. Co. v. Martin, 105 Miss. 230, 62 So. 228, to indicate there was not such evidence in the record.
Conceding without deciding that personal expenses of a litigant attending a hearing to dissolve an injunction may be recovered as damages on an injunction bond ( Price Baking Powder Co. v. Calumet Baking Powder Co., 82 Mo. App. 19; Helmkampf v. Wood, 85 Mo. App. 227; Williams v. Allen, 21 Ky. Law, 1191, 54 S.W. 720; Reed v. Brandenburg, 72 Or. 435, 143 P. 989; Panter v. National Surety Co., 36 Cal.App. 44, 171 P. 803), there is nothing in the record to show such expenses were herein necessarily incurred. ( President and Trustees, etc., v. Trustees, 54 Ill. 334.)
The court costs incurred were chargeable against the bond.
The judgment is reversed and remanded, with instructions to the trial court to enter judgment in favor of appellants for $13.
Costs awarded to appellants.
Budge, C.J., and T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.