Curtiss v. Bachman

Citations

• 110 Cal. 433
• 42 P. 910
• 1895 Cal. LEXIS 1076

Syllabus

<p>Injunction—Action on Bond—Counsel Fees and Expenses of Suit.— The liability of the sureties upon an injunction bond is measured by the terms of their contract; and where the damages are limited by the terms of the bond to such as the plaintiff may sustain by reason of the injune, tion, whatever expenses he is subjected to by reason of the suit, or for counsel fees in defending the suit, are not damages within the terms-of the bond.</p> <p>Id.—Counsel Fees, When Allowed.—Counsel fees incurred by defendant by reason of a preliminary injunction are part of the damages for which he has a right to indemnity; but only such counsel fees as may be incurred after the injunction has been issued, and prior to the determination of the action, can be considered as within the rule, and services of counsel rendered in the trial of the cause are not a portion of the damages sustained by reason of the injunction.</p> <p>Id.—Services of Counsel before Issuance of Injunction.—Services of counsel employed to resist a motion for an injunction rendered by virtue of an order to show cause why the injunction should not be granted, are not rendered by reason of the injunction, and cannot be recovered in an action upon the injunction bond.</p> <p>Id.—Unsuccessful Motion to Dissolve an Injunction.—An unsuccessful motion to dissolve an injunction does not authorize a recovery for the expense of counsel fees in making the motion, unless the court suspends its decision on the motion until the hearing of the case.</p> <p>•Id.—Preliminary Injunction—Effect of Failure to Sustain Action— Waiver of Damages.—It does not follow that because the plaintiff failed to sustain his action at the trial a preliminary injunction was not properly issued; and if, instead of seeking a dissolution of the preliminary injunction, the defendant prefers to defeat the plaintiff in his -action, he waives his right to recover from the sureties any damages -that he may sustain by reason of the issuance of the preliminar