Jamison v. Dulaney

Whitfield, J.,

delivered the opinion of the court.

This is the third appearance of this case in this court. The original bill entitled the complainant to no other relief than injunction, and the validity of the whole issue of bonds was determinable by its result, and the chancellor dissolved the injunction, allowing some $40 as attorney’s fees. This court, on appeal, affirmed that decree. When the cause was remanded, the complainants asked leave to file an amended bill, substantially identical with the original bill. This was refused, and, *892 on appeal, we affirmed that decree. When the case was the second time remanded, the counsel for appellees, who had rendered services at all stages of the cause in the chancery court and in this court, were allowed $ 100, less the previous allowance, and this appeal brings into review the propriety of this action of the learned chancellor.

As stated, the only relief prayed was the inj unction, and the validity or invalidity of the whole issue of bonds was put, by the bill, directly in issue. As said in Hammerslough v. Kansas Cily., 79 Mo., p. 87: ‘‘ It is true the services were assessed as covering the whole case, but a trial of the motion to dissolve must have brought up all the material issues of the case and rendered it necessary to dispose of the whole case on the motion. ’ ’ The best announcement of the rule we have seen is in Thomas v. McDonald, 77 Iowa, 302 , where the court says: ‘ ‘ The sole question before us, is whether the services rendered in answering the petition and defending on the trial were services in defending against the injunction. This depends upon whether the case was an independent proceeding for injunction alone, or whether the injunction was a mere auxiliary to a proceeding for other relief.. The relief asked was that the sale be enjoined [just as in the case at bar], and for such other and further relief as the petitioner is entitled to. The allegations of the petition did not entitle the petitioner to any other relief than injunction. Strike the prayer for injunction, and the allegations upon which it is asked, from the petition, and there is no case left. True, the relief asked in this case depends upon the question of title, but that does not change the fact that it is an independent proceeding for injunction only. Being for injunction only, there is nothing else in the case to defend against. The case was one for injunction alone, and what was done in the way of defense was against the injunction, and resulted in its dissolution. We hold that, under the facts certified, the plaintiff was entitled to recover his expenses for attorneys’ fees necessarily incurred in defending the case in equity. ’ ’

*893 The rule is expressly so declared in 2 High on Inj., sec. 1686; 1 Beach on Inj., sec. 203, note I, end; and in Bolling v. Tait, 65 Ala., 428 .

Affirmed.