Commission Co. v. Spencer.

neys' fees for services in this court on that apppeal would have assumed another phase and presented a question easy of determination. In such case those services would have been necessary to get rid of a live injunction. While it is true the defunct injunction might have been revived by our order reversing the order appealed from, yet, pending that appeal, it was none the less dead and inoperative to all legal intents and purposes. There was a mere chance of having a defunct one re-established as a "going concern," and the services of respondents' counsel in this court were successfully directed against the happening of such contingency.

Secondly. Whether the injunction in this case was the life of the bills or ancillary to their main purpose, we need not inquire or decide. That question. belongs with the merits of the main case when such merits reach an appellate court. However that be, injunction bonds were essential conditions precedent to temporary writs of injunction in the consolidated case. Therefore, the bonds, in one sense, were the causes of the writs. Now the writs, the restraining orders, were the cause of the damages, if any. To this condition of things the maxim applies: The cause of a cause is the cause of the effect-effect, being interpreted, means here the damages. Hence there is nothing inequitable or unjust in holding bondsmen liable for those damages, and that is exactly what the bond was given for and the law allows; withal, proceeding in doing so on the theory that, as the main suit, the injunction and the bond are in equity, equitable principles will be levied on to guide a court in ascertaining the damages. Mindful, moreover, that the statute permits a jury, thus treating the matter as at law, and, further (in the latter view of it), that it is good and stiff doctrine that liability on a bond cannot be stretched by implication beyond its terms and its statutory office, the statute being read into such statutory

Commission Co. v. Spencer.

bond when that can be done without doing violence to its terms or corroding its bowels. [Henry County v. Salmon, 201 Mo. 1. c. 162 et seq.] A bond on which a temporary injunction issues is conditioned by the statute (Sec. 2522, R. S. 1909) "that the plaintiff will abide the decision which shall be made thereon, and pay all sums of money, damages and costs that shall be adjudged against him if the injunction shall be dissolved." Such were the bonds here.

Thirdly. Assessments of damages on the dissolution of injunctions arise under such a variety of divergent circumstances that lively concern must be exercised not to apply mechanically the language used in one decision on one state of facts to another case of dissimilar facts. It must be conceded, furthermore, that the cases are not in harmony. Where they arise in other jurisdictions any note of discordance with our own may frequently be explained away by the fact that those cases take color from statutes differing in detail from our own, so some apparent discords in our own cases may be explained by changes in our statutes.

Not unmindful of the foregoing, it may be stated as good and acceptable general doctrine that compensation for losses sustained by a defendant which are the actual, natural and proximate result of the wrong committed by the restraining order, while the latter is alive and operative, is the measure of damages to be assessed against bondsmen. Says High [2 High on Inj. (4 Ed.), sec. 1663]: "In estimating damages sustained by the improper issuing of an injunction, the courts proceed upon equitable grounds, and while it is difficult to fix any precise rule or standard for determining the damages upon dissolution, it may be said generally that nothing will be allowed which is not the actual, natural and proximate result of the wrong committed. . . In other words, the liability upon the injunction bond is limited to such damages

Commission Co. v. Spencer.

as arise from the suspension or invasion of vested legal rights by the injunction. And the only damages which can be recovered are such as arise from the operation of the injunction itself, and not such as are occasioned by the suit independent of the injunction."

Although stated in different cases in different ways, yet the sum and gist of the matter is that the rule laid down by High is our rule. [Holloway v. Holloway, 103 Mo. 274; Alliance Trust Co. v. Stewart, 115 Mo. 236.]

It is universally held that defendant's attorneys' fees for services in and about legal proceedings leveled at getting rid of an injunction, and releasing defendant from the restrictions of the restraining order, are to be taken into account in estimating his damages. "The principle upon which counsel fees are allowed, upon dissolution of an injunction, does not rest upon a supposed increase of trial expenses created by the injunction. It is based upon the fact that defendant has been compelled to employ aid in getting rid of an unjust restriction forced upon him by the act of the plaintiff. (Per LEWIS, J., in Buford v. Packet Co., 3 Mo. App. 159.)

Taking the foregoing propositions as sound, we pass to a closer view of the point in hand.

(3) We are of opinion that the restraining orders were not the proximate and natural cause of the services of defendant's attorneys in the Supreme Court, hence the bondsmen are not liable for their value. This because:

It must be borne steadily in mind that under our system, as a general rule, there is no obligation on the part of one litigant to pay the attorney fees of another. Borrowing (and expanding a little) a homely adage: In law those who dance pay the fiddler. The exception to that rule in injunction proceedings flows from the existence and operative force of restraining

Commission Co. v. Spencer.

orders, wrongfully obtained, interfering with defendants' rights. When those orders were lifted below, as they were in this case, the reason of the exception no longer operated in favor of subsequent services of counsel; for the maxim runs: Cessante ratione legis, cessat ipsa lex.

It could not be soundly contended that services of counsel directed to resisting an application for a temporary injunction could be assessed as damages on the bond. The damages caused by the injunction must follow and cannot precede it. [Sturgis v. Knapp, 33 Vt. 1. c. 527, et seq.]

By much the same token, legal services in undertaking to prevent the re-establishment of a dissolved injunction, ought not to be allowed against the bond; for during the appeal (with no order, nisi, continuing the injunction in force) the case stands as if there was no injunction at all. It has been so ruled in Iowa. [Ellwood Manfg. Co. v. Rankin, 70 Iowa 403.] That was a case in which plaintiffs appealed from an order dissolving a temporary injunction. That order was affirmed above on appeal, and defendants, on subsequent assessment of damages, asked for counsel fees for services in the Supreme Court on that appeal. We may quote briefly, thus: "It is said, however, that if, on an appeal, the order had been reversed, the injunction would have been restored; and so the services rendered in resisting a reversal were as necessary, and of the same kind, as those rendered directly in procuring a dissolution. But this is not quite correct. The injunction dissolved was a mere temporary injunction. Strictly, it could not be restored. Another might be granted if the case had not proceeded to hearing, and if the granting of another temporary injunction would be of any use, but that, we think, is all that could be properly said." Accordingly it was held that such fees were not elements of allowable damages against bondsmen. Barre Water Co. v.

Commission Co. v. Spencer.

Carnes, 68 Vt. 23, is darkly penned, but its trend, arguendo, lies in the same way.

Teasdale v. Jones, 40 Mo. App. 243, decided by the Kansas City Court of Appeals, is in point. There expenses of defendant in the appellate court, on the appeal of plaintiff from the judgment dissolving an injunction, were asked as damages on his bond. After announcing the law to be that an appeal does not keep life in, or revive, the injunction order, so as to keep it in force pending the appeal, that court says: "Any element of damages, then, coming from the costs or expenses of the injunction suit, after the final judgment in the circuit court, has no place in the judgment on this motion."

In Neiser v. Thomas, 46 Mo. App. 47, the St.. Louis Court of Appeals came to the same conclusion. In that case ROMBAUER, P. J., spoke for his learned brethren, THOMPSON and BRIGGS. As a premise, he learnedly discussed the question whether plaintiff's appeal from a judgment dissolving an injunction kept a temporary injunction in force-at that time a vexed one. Having come to the reasoned conclusion that the injunction was not in force pending an appeal, it was ruled, as of course, that such conclusion precludes the right to assess as damages the value of services of counsel in the appellate court on an appeal from a dissolution.

In Helmkampf v. Wood, 85 Mo. App. 227, an instruction was asked by plaintiff that attorneys' fees for resisting the issue of a temporary injunction by the probate court should not be considered an element of damages against the bond. That instruction was refused below, and the refusal was sustained on appeal, but, observe, solely on the ground that plaintiff got another instruction in which the court expressly declared that such attorneys' fees only "as pertain to the dissolution of the temporary injunction could be allowed." In that case, too, it appeared that the