McGraw v. Little

SOMERVILLE, J. With respect to the recovery of counsel fees as damages in actions on injunction bonds, our decisions have clearly settled the following propositions: (1) 1. If the injunctive relief obtained pending the determination of the suit is the sole or the principal purpose of the bill, the ultimate relief sought being solely or principally the perpetuation of the temporary injunction, then upon its dissolution, whether in advance of or upon the final hearing of the cause itself, counsel fees are recoverable as for the defense of the entire suit to the extent, of course, that they have been incurred therefor. (2) 2. If such injunctive relief is not the sole or principal purpose of the bill, but is only incidental thereto, then only such counsel fees are recoverable as are incurred by reason of the writ itself; and the burden is upon the plaintiff to prove the fair and reasonable value of the services rendered in procuring the dissolution of the injunction. — Jackson v. Millspaugh, 100 Ala. [555] 285, 14 South. 44; Bush v. Kirkbride, 131 Ala. 405, 30 South. 780; Jesse French P. & O. Co. v. Porter, 134 Ala. 306, 32 South. 678, 92 Am. St. Rep. 31; Curry v. A. F. L. M. Co., 124 Ala. 614, 27 South. 454; Robertson v. Robertson, 58 Ala. 68; Bolling v. Tate, 65 Ala. 417, 30 Am. Rep. 5. See, also, in accord, Reece v. Northway, 58 Iowa 187, 12 N. W. 258; Creek v. McManus, 13 Mont. 152, 32 Pac. 675. (3) These general statements of the law require some elucidation. What test determines whether injunctive relief is the sole or the principal purpose of the bill, or is merely incidental? In this connection Mr. Pomeroy observes: “The equitable reliefs against mistake or fraud with respect to equitable property and the equitable remedies of all kinds to enforce trusts, express or by operation of law, and'fiduciary duties concerning specific property, would be of comparatively little practical value, unless the court could by injunction restrain the alienation, transfer, or incumbrance of such property, and all other modes of dealing with it which would prejudice the rights of the complainant, and prevent him from acquiring the title, or from enjoying his estate, or from enforcing his claim, or from receiving the full benefits of his final relief. It may therefore be stated as a general proposition that, whenever the equitable relief against mistake or fraud with respect to specific property, or the equitable remedy of enforcing trusts or fiduciary duties concerning any other equitable estates, interests, or claims in or to specific property, requires the aid of an injunction, a court of equity has jurisdiction, and will exercise that jurisdiction to grant an .injunction, either pending the suit or as a part of the final decree.” — 4 Pom. Eq. Jur. (3d Ed.) § 1339. In this class of cases it is perfectly clear that injunctive relief is not the sole or principal purpose of the. bill, but merely in aid thereof; that is, to render effective the ultimate remedies to which the complainant may be entitled with respect to such property. On the other hand, where the purpose is merely to compel some action the omission of which would be wrongful, or to prevent some action the commission of which would be wrongful, the legal remedy for damages being inadequate, the relief sought is essentially injunctiye, and begins and ends with the writ. Of this class are injunctive suits to prevent or restrain the commission of torts. — 4 Pom. Eq. Jur. (3d Ed.) § 1346. [556] (4) There is a third class of cases in which the complainant seeks, by the mere assertion of an equitable status, to prevent his adversary from enforcing against him, by suit or judgment at law, a dominant legal status with respect to the matter in question. Here the primary as well as the ultimate aim of the bill is to finally prevent the prosecution to judgment, or the enforcement of a judgment already obtained. And if such relief would follow ipso facto upon the mere establishment of the equitable status, then the suppression of the adversary’s legal remedy must be regarded as the principal and controlling purpose of the bill. Such a bill is exemplified by the case of Jackson v. Millspaugh, 100 Ala. 285, 14 South. 44. There the chancery suit in which the bond sued on was given was for the reformation of a bill of sale as to its mistaken description of the chattels sold, and to restrain pro tanto the prosecution by the vendee of an action at law for damages for the vendor’s refusal to deliver all of the chattels described in the writing; and a temporary injunction was obtained. Said the court, per Stone, C. J. “The controlling purpose of Jackson’s bill was an injunction of the suit at law, to the extent it was charged there was a mistake in the written contract. Without the injunction there must be a recovery at law for all that was claimed; for the writing on which it was founded precluded all defense at law based on the alleged mistake. And the necessity for getting rid of the temporary injunction did’not end the trouble. If dissolved on motion, and afterwards reinstated on proof, this would have left Millspaugh and his associates equally without right to recover, to the extent relief should be obtained under the bill. So the expense the injunction imposed on them was not limited to getting relief from the temporary injunction. It extended farther, and embraced all the outlay that would become necessary to prevent a reinstatement of the injunction. * * * We concur with the city court in holding that in this case all the expense incurred by Millspaugh in preparing the case for final hearing must be classed as damages resulting from the injunction, and is recoverable.” The instant case cannot be essentially distinguished from Jackson v. Millspaugh, and our conclusion here must be the same. Let the judgment be affirmed. Affirmed. Anderson, C. J., and Mayfield and Thomas, JJ., concur.