Frahm v. Walton
Before: Harrison
Synopsis
Injunction—Motion to Dissolve—Dismissal of Suit — Liability of Sureties—Counsel Fees.—The voluntary dismissal of'an injunction suit by the plaintiff, pending a motion to dissolve the injunction, is equivalent to a final determination that the injunction was improperly granted, as respects the liability of the sureties on the undertaking to respond in damages for counsel fees paid by the defendant to his attorney for making the motion to dissolve the injunction.
In.—Time of Payment of Counsel Fees.—Whether the counsel fees were paid in advance of the services, -or were not paid until after the action was dismissed, is immaterial.
Id.—Action on Injunction Bond—Fees Paid to Dissolve Injunction-Finding Against Evidence.—In the action on the injunction bond, a finding that the plaintiffs did not pay any money to their attorneys to procure the dissolution of the injunction is not sustained by the evidence, where the only witness was a plaintiff, who testified directly that he agreed with the attorneys that they were to move for the dissolution of the injunction for a fee of four hundred dollars, which was paid to them before the action was brought upon the bond, and that other sums were paid for the services of the attorneys in defending the injunction suit.
HARRISON, J.
An action was commenced against the plaintiffs on behalf of the Abbey Land and Improvement Company et al. to enjoin them from doing certain acts, and an order for an injunction
pendente lite
having been made upon condition that they execute an undertaking to the plaintiffs herein in the sum of five hundred dollars, the defendants here
[397]
in executed such undertaking, and a writ of injunction was issued and served upon the plaintiffs. Subsequently the defendants—plaintiffs herein—gave notice of a motion to dissolve the injunction, and on May 21, 1896, brought on the motion before the court for hearing, and after reading affidavits in support thereof the motion was submitted to the court for its decision. Two days thereafter, before any decision upon the motion, plaintiffs’ attorney filed a dismissal of the action. The present action is brought to recover damages sustained by reason of the injunction, the only damages claimed being those arising from the services of counsel for procuring its dissolution. Judgment was rendered by the superior court in favor of the defendants, upon the grounds found as facts by the court that the defendants did not employ any attorneys or pay any money to procure the dissolution of the injunction, and that the injunction was dissolved by reason of the dismissal of the action at the instance of the plaintiffs. A motion for a new trial was made upon the grounds that the evidence was insufficient to sustain the decision of the court, and from an order denying that motion, as well as from the judgment, the plaintiffs have appealed.
The finding of the court that the plaintiffs did not pay any money to their attorneys to procure the dissolution of the injunction is not sustained by the evidence. The only witness at the trial was the plaintiff Frahm, and he testified distinctly that he made an agreement with the attorneys to move for the ’ dissolution of the injunction for the sum of four hundred dollars, and that he had paid that sum to them before the present action was brought. Whether the money was paid in advance of the services or not until after the action had been dismissed was immaterial. This testimony of the plaintiff was not impaired by the fact that he had previously employed the same attorneys to defend him in the suit, or that the receipts given by them did not specify the particular object for which the payment was made.
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