Carroll County v. Iowa Railroad Land

Day, J. i. injtjnceryouboMiY attorney's fees. The petition in the injunction proceeding alleges that the taxes in question are utterly void, and prays that all officers of the county be restrained by injunction from selling the lands of petitioner, that upon „ . ° , . . . , •, final hearing the injunction be made jierpetual, [686] and the taxes be declared illegal and void, and to constitute no lien upon said lands. The answer asked that the injunction be dissolved, but no efforts to that end were made, and the injunction was not dissolved until the final hearing. It is claimed by the appellant that the injunction was the sole relief sought in the original cause, and that, therefore, attorney’s fees may be recovered in an action upon the bond, notwithstanding the fact that no effort was made to procure a dissolution of the injunction until the final hearing. The appellee, upon the other hand, insists that the injunction was merely auxiliary, and that, as it was dissolved upon the final hearing, attorney’s fees are not recoverable upon the injunction bond. We think, from an examination of the petition, that the injunction was merely auxiliary. The petition alleges that the taxes are void, and prays that they may be declared illegal and void, and to constitute no lien upon the lands. This relief might have been granted without the procuring of an injunction. It cannot, then, be said that the only purpose of the proceeding was to obtain an .injunction to restrain the plaintiff in this action from selling the defendant’s lands. The real purpose of the proceeding was to obtain a decree declaring the taxes in question illegal and void, and no lien upon the defendant’s lands. As auxiliary to this, and to render such decree more effectual, an injunction was asked. It follows that, under the doctrine of Langworthy v. McKelvey, 25 Iowa, 48, attorney’s fees are not recoverable in an action upon the bond. The judgment is Affirmed.