Hooper v. Patterson

VANCLIEF, C. Action upon two injunction bonds to recover $5,000 damages alleged to have been sustained by plaintiff’s intestate, by reason of the injunctions. The plaintiff had judgment for $500, with interest thereon from February 29, 1884 (the date of filing original complaint), until the date of judgment, May 4, 1889, and costs, taxed at $188.20. The defendants appeal from the judgment, and from an order denying their motion for a new trial. The appeal from the judgment should be dismissed, as it was not taken until September 23, 1891—more than two years after the entry of the judgment.

[812]The two injunction bonds were given in the same action. The first injunction having been dissolved on demurrer to the complaint, the second, to the same effect, was granted upon an amended complaint and a second bond. A demurrer to the amended complaint, upon which the second injunction was issued, was also sustained, and thereupon final judgment, dismissing the complaint and dissolving the injunction, was rendered. Prom this judgment, an appeal was taken, whereupon the judgment and order dissolving the injunction were affirmed: See Hall v. Thiesen, 61 Cal. 525, 527. The injunction restrained plaintiff’s intestate and the sheriff of El Dorado county, pendente lite, from selling, on execution in favor of the former, certain mining claims, and improvements thereon. The findings of the court negative all alleged damages by reason of the injunction, except as follows: (1) “That said Burke (plaintiff’s intestate) was necessarily put to costs and expenses, in the amount of $500, for attorneys’ fees in procuring the dissolution of said injunctions, and expended said sum.” (2) “That said Burke was necessarily put to cost and expense, in the amount of $200, for attorneys’ fees in the supreme court of the state of California, in procuring an affirmance of said judgment dissolving-said injunctions.”

1. It is contended for appellant that neither of these findings is justified by the evidence. I think this point should be sustained. The evidence not only fails to show that Burke or his administrator ever paid any attorneys’ fees for services in procuring a dissolution of either injunction, but positively shows that no such fees were ever paid, and, furthermore, shows that the estate of Burke was not liable for any such fees at the time the amended complaint, on which the case was tried, was filed, for the reason that no claim for any such fees was ever presented for allowance to the administrator of Burke, or to the probate judge. The plaintiff was appointed and qualified as administrator of Burke more than four months prior to the filing of the original complaint herein, and nearly two years before the filing of the last amended complaint; and it appears that notice to the creditors had been duly published by the administrator. Substantially all this appears from the testimony of Thomas V. O’Brien, a witness for plaintiff, who appears to have been the