Hecla Mining Co. v. Smith

This decision is utterly adverse to the very great weight of authority on the matter, and to just reasoning and principles.

A sufficient statement of the case is not set out in the prevailing opinion. The relief prayed for in the complaint in the action in which a temporary restraining order was issued was for injunctive relief only. It is true that, in the amended complaint, certain expenses of examination of the properties of defendants, against whom the action was brought, were alleged; but the entire relief demanded was injunctive relief, and such other and further relief as to the court should seem proper.

"Strike the prayer for injunction and the allegations upon which it is asked from the petition, and there is no case left."Thomas v. McDoneld, 77 Iowa 299, 42 N.W. 301.

The relief asked was that an alleged fraudulent and improvident sale be enjoined, and for such other and further relief as plaintiff should be entitled to. There was nothing in the case to defend against except the injunction. The temporary restraining order was a preliminary injunction. The great weight of authority is to the effect that where injunction is the sole object of the action, the necessity of paying counsel fees in defending the case on its merits is an actual damage sustained by reason of the injunction, and such fees may be recovered in an action on the bond. 32 C.J. 476, and cases cited.

The reasons for the rule, as stated in Pelkey v. NationalSurety Co., 143 Minn. 176, 173 N.W. 435, are:

"A plaintiff who seeks a permanent injunction only, and can get and takes a temporary injunction giving him the same relief temporarily, is much in the position of one taking execution before judgment, and if he fails to get a judgment it is not harsh that he be required to pay the damage he has caused. There is nothing strained in holding . . . that the value of services of counsel in defending the main action is an item of damage within the terms of the bond. . ."

So far as I can discover, there are only two states, California and Kentucky, whose courts hold to the contrary.

Nor are our cases to the contrary, unless it be that ofKastner v. Algase, 130 Wash. 362, 227 P. 504, which I think decided wrongly. Assuredly the case of Anderson v. ProvidentLife Trust Co., 26 Wash. 192, 66 P. 415, was in accord with the great weight of authority; and in Stone v. Hunter TractImprovement Co., 68 Wash. 28, 122 P. 370, 39 L.R.A. (N.S.) 180, this court held:

"Failure to move to discharge a wrongful injunction does not limit the recovery to nominal damages, where the injunction was not ancillary to the main issue, but was of the essence of the controversy, and plaintiff tried the case on its merits instead of moving to dissolve the injunction." (Syllabus)

It is true that in that case the items of damages sought were not attorney's fees; but the decision, written by Chadwick, J., was certainly contrary to the holding of the court here and inKastner v. Algase, supra, to the effect that unless a motion were made to dissolve the temporary restraining order, or preliminary injunction, attorney's fees could not be recovered as damages for the dissolution of the injunction.

Where injunction is not the chief or only relief demanded, but is only auxiliary to some other relief sought by the plaintiff in the original action, if the injunction were wrongfully issued, as was held by several cases from this court, it must have been shown by and upon a motion to dissolve the temporary restraining order or injunction; and unless it were so shown it would be presumed, as said by Judge Fullerton, in PugetSound Harbor, etc. v. Aetna Accident Liability Co., 97 Wash. 413,166 P. 785, that the preliminary injunction was not wrongfully issued.

In the case out of which this action grew, the allegations of conspiracy to defraud required the taking of evidence as to the truth or falsity thereof. The proof of the respondents alone, who were plaintiffs in that case, required more than a month to introduce. There was no question of law that could terminate that suit upon a motion to dissolve the temporary restraining order, and it was apparently impossible to get rid of the injunction in that case without a trial on the entire merits. Upon the decision of the trial court therein that respondents, as plaintiffs in that case, had failed to show cause for the injunction, and that an injunction pendente lite would not be granted, the plaintiffs there abandoned their action. Then these appellants immediately moved to dissolve the temporary restraining order, which had been issued without cause.

It therefore seems to me that it is ridiculously technical to hold that, in a case where injunction is the sole relief demanded, the defendants in the case must at least make a useless, technical motion for the dissolution of the injunction or they cannot be heard to say that they are entitled to reasonable attorney's fees as damages, upon the subsequent finding of the court that the temporary injunction was wrongfully issued.

For these reasons, briefly stated and poorly argued, I am obliged to dissent.