Mitchell v. Hawley

McFarland, J. This is an action to recover damages on a bond for a temporary injunction in an action in the United States circuit court. The judgment was for plaintiffs, and defendants appeal from the judgment, and from an order denying a new trial. The court found that plaintiffs Were damaged by the injunction, generally, in the sum of $770, and that they were also entitled to the further sum of $400, for attorneys’ fees in procuring its dissolution.

[3021]. We have carefully examined the elaborate argument of the learned counsel for appellants to the point-that the evidence does not justify the court in finding the first item of damage of $770, but after a close examination of the transcript and the views of counsel, we find no reason for disturbing that finding. It would serve no useful purpose to discuss that matter in detail.

2. We cannot agree with counsel in the view that in an action brought in a court in this state, on an injunction bond given in a court of the United States, counsel fees can, in no instance, be recovered as damages, because such damages are not allowed by the federal courts. Bondsmen, in such a* case, cannot be held to have contracted with the understanding that a suit would be brought upon the bond (if it all) in a federal court, and that their liabilities would be fixed according to the view which that court might be supposed to take of the law. If, for instance, the defendants here and the defendants in the injunction suit were all residents of California (which was probably the fact) an action on the bond could probably not be maintained in a federal court at all.

3. But we think the court below erred in allowing as damages the item of four hundred dollars for attorneys’ fees. The allowance of counsel fees in suits on injunction bonds, and in one or two other actions of a kindred character, is exceptional; and it should not be carried beyond the point to which former decisions have taken it. In the. injunction suit in which the bond now before us was given, the attorneys for the defendants were given five hundred dollars in gross for all their services in the case. They made an effort to get the temporary injunction dissolved, but failed. Afterward the injunction was ended by the dismissal of the action; and the action was dismissed because a recent decision of the supreme court of the United States, made after the attempt to dissolve the injunction had failed, determined all the issues [303]