Rosser v. Timberlake

STONE, C. J. This case has been in this court on two former appeals, and most of the legal questions involved in it have been decided. — Rosser v. Bunn, 66 Ala. 89 ; Washington v. Timberlake, 74 Ala. 259. There is nothing in the objection, that Timberlake was allowed to continue the action in his individual name, after Bunn’s death. Bunn was his co-obligee in the bond, his co-plaintiff in the suit, and when he died, Timberlake alone was authorized to sue. — 1 Add.- on Contr. (3d Amer. Ed.) 649-50, § 465 ; 1 Pars, on Contr.* 31. The remaining questions we shall notice, arise on charges refused. There can be no question, that under the case made by the complaint, even if the obligees sustained no actual injury, there should be a recovery for nominal damages. The bond was a lawful one, and its condition was broken. Charges two, three, five and ten were rightly refused on this ground, if for no other. On the principles declared above, the court rightly refused charges one, seven and nine. It is a mistake to suppose that, because there is no proof of present injury caused by the injunction and restraining order, [167] there was no occasion to employ counsel to defend against it. Any suit brought, if not defended, may result in costs, if not in a more grievous wrong against defendant. It does not lie in the mouth of a complainant, who has forced another into court, to claim exemption from liability, on the plea that his suit was so harmless or frivolous as not to call for defense. The court rightly refused charges four, six and ten, as asked. Charge number eight was rightly refused, if for no other reason, because the attorney’s fee of fifteen dollars, when taxed as costs, accrues, not on the dissolution of a preliminary injunction, but on the final termination of the cause. The injunction may be dissolved on motion, and yet, on final trial,, complainant may recover. In such case, the attorney’s taxed fee would belong to the complainant. Charges eleven and twelve are faulty, in this : They seek to bring into contention the matter of filing interrogatories and taking depositions, when there does not appear to have been any testimony on that subject. The bill of exceptions informs us it contains all the evidence. It is a fatal objection to a charge asked, if any of its postulates of fact, whether material or not, do not appear to be supported by' any testimony. — 1 Brick. Dig. 338, § 41; Ib. 340, § 65 ; M. & E. Railway v. Kolb, 73 Ala. 396. We find no error in the record, and the judgment of the Circuit Court is affirmed.