Porter v. Hopkins

McKee, J. By the undertaking in suit the defendants undertook to pay such damages as might be sustained by reason of the issuance of an injunction, if it should be finally decided by the court that the parties in whose behalf the writ was issued were not entitled to it.

The writ was issued out of one of the late District Courts of the city and county of San Francisco in a suit in equity brought by Egbert Judson et al. against George K. Porter et al. to perpetually enjoin the latter from prosecuting certain actions at law then pending for the recovery of some real estate which was then in controversy between the parties to the suit. It was admitted by the pleadings in the case in hand that the plaintiff Porter was the sole party interested in the prosecution of the actions enjoined, and on the trial the court found that he had incurred and paid out, for the services of counsel in and about the dissolution of the injunction, the sum of one thousand dollars; and he had been also compelled to pay as a further counsel fee the sum of two hundred dollars, for services rendered in procuring from the court, out of which the injunction had been [54]issued final judgment that the plaintiffs in the injunction suit were not entitled to the writ.

These were the only two items of damages considered and allowed by the court, and the question arises, Are the defendants liable on their undertaking for each of these items?

Upon the final decision by the court that the plaintiffs were not entitled to the writ of injunction, a cause of action accrued, according to the terms of the undertaking, to recover such damages as had been sustained by reason of the injunction.

' Reasonable and necessary counsel fees expended in obtaining a dissolution of the injunction are properly allowable as damages in a suit upon the undertaking. (Wilson v. McEvoy, 25 Cal. 172; Prader v. Grimm, 28 Cal. 11.) The services, for which the plaintiff incurred and paid out one thousand dollars, were rendered by his counsel on two motions made to dissolve the injunction, and on appeal from the last order refusing to dissolve it to the Supreme Court, where the order was reversed with direction to the lower court to dissolve the injunction. The services upon these motions were necessary, the charge for them was reasonable, and it was paid by the plaintiff. The finding to that effect is fully sustained by the evidence, and the sum was properly allowed.