junction undertaking given and executed by Littleton, as principal, and Schroeder, as surety, in an action wherein the said Littleton was plaintiff and the said Burgess, county and prosecuting attorney of Sheridan county, Wyoming, was defendant. The case was tried without the intervention of a jury, and the court found and rendered judgment in favor of Burgess. Littleton and Schroeder bring the case here on error.

1. Plaintiff's in error (defendants below) complain that the trial court denied their motion for a change of venue. That question cannot be here considered, for the rea

Scott, J., delivered the opinion of the son that there is no bill of exceptions, and

ever since been the rule of practice in this exception, and such ruling is here assigned court.

as error.

and prosecuting attorney of said county, from causing the arrest and prosecution of the said Littleton for a violation of the antigambling law, and from further prosecuting him in a proceeding wherein he had been duly charged and arrested for a like offense; that, upon application to the judge of said

Counsel fees are not recoverable for services in obtaining the dissolution of an injunction upon an injunction bond. Wisecarver v. Wisecarver, 97 Va. 452, 34 S. E. 56.

2. Plaintiffs in error demurred to the pe- 'It is alleged in the petition that James H. tition on three grounds, viz.: First, that Burgess was the duly elected and qualified the petition does not state facts suflicient to county and prosecuting attorney in and for constitute a cause of action; second, that Sheridan county during 1904 and 1905; there is a defect in the party plaintiff, ap- that, on August 20, 1904, the plaintiff in erpearing on the face of the petition, in this, ror Littleton commenced an action in the that "James H. Burgess" in his individual district court of Sheridan county against capacity, or as an individual, is not the prop-' said Burgess, county and prosecuting ater party plaintiff, but that the face of the torney of Sheridan county, Wyoming, the petition discloses the proper party plaintiff | object and purpose of which was to restrain to be either James H. Burgess, as county and enjoin the defendant therein, as county and prosecuting attorney of Sheridan county, Wyoming, or the state of Wyoming; third, that the plaintiff has no capacity to sue, as disclosed from the face of the petition. The demurrer was overruled, and the defendants were given time within which to plead, to which ruling they reserved an the event the plaintiff in the injunction does not prevail in his suit. But such does not appear to have been the practice in Texas. On the contrary, the case of Jordan v. David, 20 Tex. 712, seems to be an authority that, in a suit on the injunction bond, the The case of Wisecarver v. Wisecarver, suattorneys' fees of the defendant in the orig-pra, was an action upon an injunction bond inal suit are not an element of damages conditioned to pay all such costs and damto be recovered. The opinion is very brief, ages as might be awarded against the party and the point is not noticed; but the state- obtaining the injunction, and all such damment of the case shows that the question ages as might be incurred in case the inwas presented, and that, if the attorneys' junction should be dissolved, in which the fees were recoverable, it would have led to question was whether attorneys' fees could a reversal of the judgment, when in fact be recovered as part of the damages secured the judgment was aflirmed. Counsel fees by such bond. There is no decision by this in the original suit are not allowed as com- court, said Harrison, J., in delivering the pensatory damages in suits for wrongfully opinion, on the right to recover counsel suing out writs of attachment and sequestra- fees in such an action; nor is the question tion, and we see no reason why a different adverted to, so far as we have been able to rule should apply when an injunction has discover, by any of the Virginia text writbeen wrongfully obtained. ers. In a large number of our sister states the question has arisen, and seems to be the subject of much litigation and great diversity of opinion. The weight of authority in these states seems to be, as indicated by leading text writers on the subject, that counsel fees are allowable as damages if they have been necessarily incurred in procuring the dissolution of an injunction where that is the sole relief sought by the bill. But, if the injunction is only ancillary to the principal object of the bill, and the liability for counsel fees is incurred in defending the suit generally, the dissolution of the injunction being only incidental to the result, then such fees cannot be recovered. This view leaves open, to be determined in each case, the question of the character of the proceeding,-whether it is a pure bill of injunction or otherwise. Some of the authorities hold that there can be no recovery at all where there are mixed questions involved relating both to the merits of the suit and to the injunction; while others hold that, if it is possible to discriminate between the two, the jury may find for so much of the service as was rendered merely on the injunction, eliminating the services rendered

In Jones v. Rosedale Street R. Co. 75 Tex. 382, 12 S. W. 998, the court said: "The only question in the case is, Can money paid as attorneys' fees for obtaining the dissolution of an injunction be recovered by suit on the injunction bond? We do not think this is now an open question in this state. In the case of Galveston, H. & S. A. R. Co. v. Ware. 74 Tex. 50, 11 S. W. 918, Following Oelrichs v. Spain (Oelrichs v. Williams) 15 Wall. 211, 21 L. ed. 43,-it was expressly decided that such recovery could not be had."

In the case immediately following, of Davis v. Rosedale Street R. Co. 75 Tex. 381, 12 S. W. 999, the question was repeated in the opinion, and the court said: "This question was answered in the negative by the decision of this court in the case of Jones v. Rosedale Street R. Co. supra, decided at this term upon the authority of the case of Galveston, H. & S. A. R. Co. v. Ware, supra."

In an action for damages for wrongfully suing out a writ of injunction, attorneys' fees are not recoverable. Smith v. Wilson, 91 Tex. 503, 44 S. W. 672.

district court, a temporary injunction was same to become effective and be in force updirected to issue restraining and enjoining saii Burgess, as such county and prosecuting attorney, from causing the arrest, and from prosecuting said Littleton for the alled violations of the law, upon said Littleton giving an undertaking in the sum of $1,000 conditioned as required by law. Thereupon Littleton, as principal, and Schroeder, as surety, executed and filed the undertaking involved in this suit, which was approved by the clerk of the district court, and the writ issued and was served upon Burgess. The undertaking is in the following words, to wit:

Bond for Injunction.

on the plaintiff executing a bond to the defendants in the sum of $1,000, conditioned as required by law: Now, therefore, we, Fred Littleton, as principal, and Fred Schroeder, as surety, acknowledge ourselves to be held and firmly bound unto said defendant in the sum of $1,000, conditioned that the said plaintiff will pay said defendants and each of them all damages which they may sustain if it be finally determined that said injunction ought not to have been granted. In witness whereof, we have hereunto set our hands this 20th day of August, A. D. 1904.

[Signed] Fred Littleton, Principal Fred Schroeder, Surety.

It is further alleged that thereafter such proceedings were had therein that, on March ance rests on a solid foundation, while the opposite rule is forbidden by the analogies of the law and sound public policy.

The case of Gear v. Shaw, 1 Pinney (Wis.) 608, which held that attorneys' fees paid were not a legal charge in the assessment of damages upon an injunction bond, was overruled subsequently in the case of Wisconsin M. & F. Ins. Co. Bank v. Durner, 114 Wis. 369, 90 N. W. 435.

c. The doctrine in other states.

In the other states of the Union the doctrine of the Federal courts has not been acceptable, and some earlier cases decided under the territorial form of government have been overruled.

Whereas, in the above-entitled action, a temporary injunction has been granted as prayed in said petition on file herein, the on the merits. What is a pure bill of injunction is always a difficult question to be * Letermined. Nearly every injunction proeeding involves the settlement and determination of some right that is controverted by the parties thereto; and hence, in a maority of the cases in those states which have adopted the rule to which we have adverted the chief controversy had been as to the character of the proceeding.-whether the services rendered related solely to obtaining a dissolution of the injunction, or whether they were rendered in procuring a settlement of the merits of the suit. The question under consideration has long been settled by the Supreme Court of the United States adversely to the contention of the defendants in error. Since the decision in Oelrichs v. Spain, supra, the rule there laid down has never been departed from by that court. The condition of the bond in the case at bar is in the language of the statute. The word "damages," as used in this statute, was not intended to cover an allowance for counsel fees. The statute did not contemplate a recovery on account of those personal expenses such as every litigant is subjected to who is brought into court by his adversary, whether in an important or a frivolous suit, but only such damages as flow directly from being stopped in the exercise of the right enjoined. The application of the principle adopted by the states which have considered this question seems to be difficult, and in many instances imBelmont Min. & Mill. Co. v. possible, and, in its result, would afford a Colo. 465, 42 Pac. 650. recovery in a very small number of cases. Florida: Wittich v. O'Neal, 22 Fla. 592. We are of opinion that the easy, simple, and Georgia: Richardson v. Allen, 74 Ga. 719. more satisfactory rule is to deny the right Illinois: Ryan v. Anderson, 25 Ill. 372; to recover counsel fees as part of the dam- Misner v. Bullard, 43 Ill. 470; Joslyn v. ages, and thus have a uniform rule, har- Dickerson, 71 Ill. 25; Mason v. Shawneemonious with the established and unques- town, 77 Ill. 533; Cummings v. Burleson, tioned doctrine in this state as to actions 78 III. 281; Kohlsaat v. Crate, 144 Ill. 14, upon contracts, and, indeed, as to most 32 N. E. 481; Lambert v. Alcorn, 144 Ill. other cases, and to confine the right to recov- 313, 21 L.R.A. 611, 33 N. E. 53; Keith v. er to the fees allowed by statute and taxable Henkleman, 173 II. 137, 50 N. E. 692, Afin the costs. As said by the Supreme Court | firming 68 111. App. 623; Landis v. Wolf, in the case cited, the principle of disallow | 206 Ill. 392, 69 N. E. 103; Toledo, St. L.

Counsel fees paid for necessary services directed to procuring the dissolution of the injunction, when reasonable in amount, are held to be recoverable as damages upon injunction bonds conditioned in the ordinary terms to pay such damages as the obligee may sustain by reason of the injunction if the same be dissolved, in the following cases:

California: Ah Thaie v. Quan Wan, 3 Cal. 216; Prader v. Grim, 13 Cal. 585; Bustamente v. Stewart, 55 Cal. 115; Porter v. Hopkins, 63 Cal. 53; Curtiss v. Bachman, 110 Cal. 433, 52 Am. St. Rep. 111, 42 Pac. 910; Frahm v. Walton, 130 Cal. 396, 62 Pac. 618. Colorado: Costigan, 21

22, 1905, judgment was duly entered in said, as required by law, in that it was not mad cause, by which it was adjudged that said to the defendant in his official capacity, bɩ temporary injunction ought not to have been granted, and the action was dismissed; that thereafter, upon proceedings in error, this court affirmed the said judgment; that said Burgess contracted and obligated himself to pay the sum of $1,000 as attorneys' fees in the defense of said action, and to secure the dissolution of the injunction, in which sum he has been damaged and prays judgment therefor.

vides that the county and prosecuting attorney shall prosecute or defend for the state or county in all civil or criminal suits or proceedings at law in which the state or county is a party. Neither state nor county was a party to the action. Both were strangers to the injunction suit, and neither had, nor could have, any interest in or title to the proceeds of any judgment recovered on the undertaking. In Breeze v. Haley, 13 Colo. App. 438, 59 Pac. 333, Breeze was temporarily enjoined as county treasurer from collecting taxes. The undertaking ran to him individually, and, upon determination that the writ ought not to have been granted, suit for damages was commenced on the undertaking against the obligor and his sureties. The first complaint was entitled "Lewin an action on the bond, and that reasonable counsel fees are a part of such expenses. Jameson v. Bartlett, 63 Neb. 638, 88 N. W. 860; First Nat. Bank v. Hockett, 2 Neb. (Unof.) 512, 89 N. W. 412.

is H. Breeze, Plaintiff," while the second amended complaint was entitled “Lewis H. Breeze, as Treasurer of Routt County, Plaintiff, v. Ora Haley et al., Defendants." There was no answer to the complaint, and, upon admission of the fact that Breeze had ceased to be treasurer of Routt county at the time of the commencement of the action, a motion to dismiss was sustained on the ground that at the time of the commencement of the action Breeze was not the treasurer and had no authority to bring it. The plaintiff then asked leave to withdraw his second amended complaint and to substitute and reinstate his first complaint. This motion was denied, and judgment of dismissal was ordered. The court of appeals reviewed the judgment, and held that the words descripcase just cited, that a reasonable amount of compensation paid as counsel fees in procuring the dissolution of a wrongful injunetion may be recovered in an action on the bond, as a damage incurred, as direct and If a defendant, in point of fact, employs immediate as any other, seems to be suscounsel merely to have an injunction dis-tained by a decided preponderance of authorsolved, he is entitled, in an action upon the injunction bond, to recover what he paid for that purpose, if a reasonable sum, irrespective of the method adopted by the counsel employed to get rid of the injunction. May v. Deposit Bank, 5 Ky. L. Rep. 691.

In Aldrich v. Reynolds, supra, the chancellor took occasion to say, upon the question of the propriety of allowing counsel fees as damages in injunction cases, that, "in the case of Edwards v. Bodine, 11 Paige, 223, this court decided, on a full examination of the question, that a party enjoined was entitled to recover the counsel fees which he had been compelled to pay out to obtain a dissolution of the injunction, as well as the taxable costs of so much of the proceedings in the suit as were necessary to procure such dissolution. That question, therefore, is no longer open to discussion here."

In Rose v. Post, 56 N. Y. 603, an allowance of counsel fees for services rendered on a motion to dissolve an injunction was questioned, and the court said that the law on this question had been too long and too well settled to admit of doubt as to the propriety of the allowance.

It is well settled that the fees of counsel for services in procuring the dissolution of an injunction, and in attending a reference to assess damages consequent thereon, are proper within the condition of the undertaking upon the injunction, and recoverable as damages. Newton v. Russell, 87 N. Y. 527, Reversing on other points 24 Hun, 40.

A reasonable amount paid as compensation to counsel for services in procuring the dissolution of an injunction wrongfully is sued may be recovered as damages in an action upon the injunction bond. State use of Levy v. Medford, 34 W. Va. 633, 12 S. E. 864.

The proposition, said the court, in the

ity.

Attorneys' fees for services rendered in procuring a dissolution of the temporary injunction and preventing the issue of a permanent one, when proper and reasonable, are recoverable as damages upon the injunetion bond. Miles v. Edwards, 6 Mont. 180, 9 Pac. 814.

The court in that case distinguished its previous decisions in Campbell v. Metcalf, 1 Mont. 378, and Allport v. Kelley, 2 Mont. 343, upon the ground that the relief sought by injunction in those cases was merely ancillary to the main action, and the services rendered by the attorneys were in both the auxiliary and the main action, and upon them a gross value was fixed, whereas in the case at bar no services were rendered for which compensation was claimed except with reference to the injunction.

In Wittich v. O'Neal, 22 Fla. 592, many of the cases in point upon the subject of this note are cited, and the weight of authority is said to favor the recovery of counsel fees as part of the damages indemnified against by ordinary injunction bonds. The case of Oelrichs v. Spain (Oelrichs v. Williams) 15 Wall. 211, 21 L. ed. 43, in which the United States Supreme Court reached the contrary conclusion, was, with the cases which have followed it, criticized and disapproved.

The question with which this note is concerned was briefly disposed of in Binford v. Grimes, 26 Ind. App. 481, 59 N. E. 1085, as follows: "Appellant contends that attorneys' fees are not allowable as damages in an action upon an injunction bond. The supreme court of this state has held otherwise." And then it cited Hyatt v. Washington, 20 Ind. App. 148, 50 N. E. 402, as holding that, "where the injunction is not the sole object of the action, but other and additional relief is sought, fees paid for