Wade, O. J.
This is an action upon an injunction undertaking issued in the case of A. L. Fenner against Van Brocklin & Mallett, represented herein by Nahum Parker, administrator, plaintiff. The complaint alleges in substance that on the 16th day of November, 1874, in an action brought by A. L. Fenner against Van Brocklin & Mallett, a temporary restraining order was issued, and an undertaking executed by the defendants herein, in the sum of $1,000, given in favor of the defendants therein to cover any damages that might result to them in case it should be finally determined that the injunction or restraining order was wrongfully issued, which undertaking is set forth in full and made a part of the complaint. The complaint further alleges that such proceedings were had in the action that it was finally decided and adjudged that the plaintiff therein was not entitled to said injunction; “ that in having said injunction dissolved, and in and about defending the same in said court, these plaintiffs were compelled to and did employ counsel, and were necessarily compelled to pay, lay out and expend the sum of $200 in and about the employing and paying said counsel;” “that the damages in other respects sustained by these plaintiffs, by reason of the said injunction, amounts to the sum of $800, and interest thereon from the date of the dissolution of said injunction.”
[9]*9Mallett, one of the plaintiffs, died before judgment was entered, and the action was continued in the name of Van Brocklin, as surviving partner. Van Brocklin died after the entry of judgment in his favor for the full amount covered by the penalty of the undertaking, and before the motion for a new trial had been heard, and thereupon Nahum Parker, the plaintiff, was appointed administrator of the estate of Van Brocklin, and the action was thereafter prosecuted in his name.
The appellants contend, among other things, that the complaint does not state a cause of action as to the $800 claim for damages, or for any damages, except as to the $200 alleged to have been paid out as attorneys’ fees; that this defect in the complaint may be taken advantage of at any time, and that as to the $200 claim there is no proof to support it. Second, that the complaint does not support the judgment. Third, that the damages assessed were not alleged.
The respondents in answer say that if the complaint did not state a cause of action, the defendant should have demurred, and that if incompetent evidence was received at the trial, no exceptions were properly saved thereto.
A jury having been waived by the parties, the cause was tried before the court upon the evidence before that time taken, reduced to writing and reported by a referee. At the taking of the testimony, the defendants, by their counsel, objected to very much of the evidence, and, among the rest, to any proof of special damages under the allegations of the complaint, and asked the referee to pass upon their objections, which he refused to do, but noted the defendants’ objections in his report of the testimony.
The testimony, as taken by the referee, together with the several objections of the parties thereto, was argued by counsel, and upon the close of the argument of counsel for the defendants, he asked the court to pass upon [10]*10the competency or incompetency of the evidence produced on the trial; but the court, in considering the evidence, failed to sustain or overrule the several objections as they appeared in the record.
After the rendition of the judgment, counsel for the defendants asked the court to enter an order upon each and several the objections made to the testimony and matters of evidence in the case, which by the court was refused, and the defendants duly excepted.
After the rendition of the judgment in favor of the plaintiff, the defendants filed their motion for a new trial, for the following among other reasons: First, that the court erred in considering any evidence of damages, other than that pertaining to attorneys’ fees, under the pleadings in the action, and against the objections of the defendants. Second, that the court erred during the trial of the cause, sitting as a jury, in not ruling upon the objections of the defendants to the competency and admissibility of evidence taken before the referee, thereby depriving the defendants of their privilege of excepting, during the trial, to the ruling of the court upon any particular objection, but considered all the evidence taken by the referee against objections of the defendants. Third, that the evidence is insufficient to justify the findings in this, that the evidence shows that the sum of $200 was paid to all the attorneys for all their services in the case, which included their services for procuring a dissolution of the injunction at chambers, and the trial of the case on its merits at the term; and fourth, that the proof of special damages was wholly incompetent under the allegations of the complaint and the pleadings.
The statement on motion for a new trial having been settled, the motion was overruled, to which action of the court the defendants duly excepted, and appealed from the judgment and from the order overruling their motion for a new trial.
1. The allegation of the complaint as to damages other [11]*11than that in relation to attorneys’ fees is general, and is as follows: “That the damages in-other respects sustained by these plaintiffs, by reason of the said injunction, amounts to the sum of $800, and interest thereon from the date of the dissolution of said injunction.” This allegation is entirely insufficient to authorize the proof of, or to support a judgment for, special damages. In order to authorize proof of special damages they must be alleged. The defendants are entitled to notice. The allegation and proof must correspond. No special damages having been alleged in the complaint, none ought to have been proved on the trial; and none having been alleged, the complaint cannot be made to support a judgment for special damages. Dabovich v. Fmeric, 12 Cal. 172, 180; Stevenson v. Smith, 28 Cal. 102; L. T. & Co. v. S. & W. W. R. Co. 41 Cal. 565; Potter v. Froment, 47 Cal. 165; Wilson v. Davis, 1 Mont. 199; Baldwin v. Western R. Co. 4 Gray, 333; Adams v. Barry, 10 Gray, 361; Parker v. City of Lowell, 11 Gray, 358; 2 Greenl. Ev. sec. 254, and cases cited; Sedg. Meas. Dam. (5th ed.) secs. 675-7; Wood’s Mayne on Damages (1st Am. ed.), secs. 749-752; 1 Chitty’s Pl. 398; 1 Estee’s Pl. 191, secs. 113, 114.
Under this general allegation of damage the court heard testimony as to special damages, and found as matter of fact that the plaintiff had been damaged in the sum of $164, the same being the value of the time lost by one of the plaintiffs, during the time' he was prevented from work on account of the non-user of water mentioned in the injunction writ; also in the further sum of $100, being the amount expended by plaintiffs in opening their pits and drains which had been filled up with sand and debris during the pendency of the injunction, and which plaintiffs, by reason of not being able to use the water mentioned in said writ, were unable to keep out of said pits and ditches; also in the further sum of $500, the same being the value of the wrater, and its use to the plaintiffs during the time they were restrained [12]*12from its use.
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Wade, O. J.
This is an action upon an injunction undertaking issued in the case of A. L. Fenner against Van Brocklin & Mallett, represented herein by Nahum Parker, administrator, plaintiff. The complaint alleges in substance that on the 16th day of November, 1874, in an action brought by A. L. Fenner against Van Brocklin & Mallett, a temporary restraining order was issued, and an undertaking executed by the defendants herein, in the sum of $1,000, given in favor of the defendants therein to cover any damages that might result to them in case it should be finally determined that the injunction or restraining order was wrongfully issued, which undertaking is set forth in full and made a part of the complaint. The complaint further alleges that such proceedings were had in the action that it was finally decided and adjudged that the plaintiff therein was not entitled to said injunction; “ that in having said injunction dissolved, and in and about defending the same in said court, these plaintiffs were compelled to and did employ counsel, and were necessarily compelled to pay, lay out and expend the sum of $200 in and about the employing and paying said counsel;” “that the damages in other respects sustained by these plaintiffs, by reason of the said injunction, amounts to the sum of $800, and interest thereon from the date of the dissolution of said injunction.”
[9]*9Mallett, one of the plaintiffs, died before judgment was entered, and the action was continued in the name of Van Brocklin, as surviving partner. Van Brocklin died after the entry of judgment in his favor for the full amount covered by the penalty of the undertaking, and before the motion for a new trial had been heard, and thereupon Nahum Parker, the plaintiff, was appointed administrator of the estate of Van Brocklin, and the action was thereafter prosecuted in his name.
The appellants contend, among other things, that the complaint does not state a cause of action as to the $800 claim for damages, or for any damages, except as to the $200 alleged to have been paid out as attorneys’ fees; that this defect in the complaint may be taken advantage of at any time, and that as to the $200 claim there is no proof to support it. Second, that the complaint does not support the judgment. Third, that the damages assessed were not alleged.
The respondents in answer say that if the complaint did not state a cause of action, the defendant should have demurred, and that if incompetent evidence was received at the trial, no exceptions were properly saved thereto.
A jury having been waived by the parties, the cause was tried before the court upon the evidence before that time taken, reduced to writing and reported by a referee. At the taking of the testimony, the defendants, by their counsel, objected to very much of the evidence, and, among the rest, to any proof of special damages under the allegations of the complaint, and asked the referee to pass upon their objections, which he refused to do, but noted the defendants’ objections in his report of the testimony.
The testimony, as taken by the referee, together with the several objections of the parties thereto, was argued by counsel, and upon the close of the argument of counsel for the defendants, he asked the court to pass upon [10]*10the competency or incompetency of the evidence produced on the trial; but the court, in considering the evidence, failed to sustain or overrule the several objections as they appeared in the record.
After the rendition of the judgment, counsel for the defendants asked the court to enter an order upon each and several the objections made to the testimony and matters of evidence in the case, which by the court was refused, and the defendants duly excepted.
After the rendition of the judgment in favor of the plaintiff, the defendants filed their motion for a new trial, for the following among other reasons: First, that the court erred in considering any evidence of damages, other than that pertaining to attorneys’ fees, under the pleadings in the action, and against the objections of the defendants. Second, that the court erred during the trial of the cause, sitting as a jury, in not ruling upon the objections of the defendants to the competency and admissibility of evidence taken before the referee, thereby depriving the defendants of their privilege of excepting, during the trial, to the ruling of the court upon any particular objection, but considered all the evidence taken by the referee against objections of the defendants. Third, that the evidence is insufficient to justify the findings in this, that the evidence shows that the sum of $200 was paid to all the attorneys for all their services in the case, which included their services for procuring a dissolution of the injunction at chambers, and the trial of the case on its merits at the term; and fourth, that the proof of special damages was wholly incompetent under the allegations of the complaint and the pleadings.
The statement on motion for a new trial having been settled, the motion was overruled, to which action of the court the defendants duly excepted, and appealed from the judgment and from the order overruling their motion for a new trial.
1. The allegation of the complaint as to damages other [11]*11than that in relation to attorneys’ fees is general, and is as follows: “That the damages in-other respects sustained by these plaintiffs, by reason of the said injunction, amounts to the sum of $800, and interest thereon from the date of the dissolution of said injunction.” This allegation is entirely insufficient to authorize the proof of, or to support a judgment for, special damages. In order to authorize proof of special damages they must be alleged. The defendants are entitled to notice. The allegation and proof must correspond. No special damages having been alleged in the complaint, none ought to have been proved on the trial; and none having been alleged, the complaint cannot be made to support a judgment for special damages. Dabovich v. Fmeric, 12 Cal. 172, 180; Stevenson v. Smith, 28 Cal. 102; L. T. & Co. v. S. & W. W. R. Co. 41 Cal. 565; Potter v. Froment, 47 Cal. 165; Wilson v. Davis, 1 Mont. 199; Baldwin v. Western R. Co. 4 Gray, 333; Adams v. Barry, 10 Gray, 361; Parker v. City of Lowell, 11 Gray, 358; 2 Greenl. Ev. sec. 254, and cases cited; Sedg. Meas. Dam. (5th ed.) secs. 675-7; Wood’s Mayne on Damages (1st Am. ed.), secs. 749-752; 1 Chitty’s Pl. 398; 1 Estee’s Pl. 191, secs. 113, 114.
Under this general allegation of damage the court heard testimony as to special damages, and found as matter of fact that the plaintiff had been damaged in the sum of $164, the same being the value of the time lost by one of the plaintiffs, during the time' he was prevented from work on account of the non-user of water mentioned in the injunction writ; also in the further sum of $100, being the amount expended by plaintiffs in opening their pits and drains which had been filled up with sand and debris during the pendency of the injunction, and which plaintiffs, by reason of not being able to use the water mentioned in said writ, were unable to keep out of said pits and ditches; also in the further sum of $500, the same being the value of the wrater, and its use to the plaintiffs during the time they were restrained [12]*12from its use. None of these items of damage was pleaded, but judgment was rendered in favor of the plaintiffs for their entire amount as stated in the findings of fact, and hence it follows that damages have been assessed against the defendants that were not alleged in the complaint, and hence that the complaint does not support the judgment.
This is an appeal from a judgment as well as from an order overruling a motion for a new trial. The appeal from the judgment brings before the court the judgment roll, which includes the complaint and the findings of fact by the court and the judgment. The appeal from the order overruling the motion for a new trial brings before this court the testimony upon the trial as settled and contained in the statement, which in this case contains the entire testimony, the same having been reduced to writing by a referee and returned to the court before the trial; and in either case, even if no exceptions had been saved on the trial, the question could have been raised here for the first time that the complaint did not support the findings of fact or the judgment.
The objection that the • complaint does not state facts sufficient to constitute a cause of action is never waived (see sec. 86, Code); and in all cases before affirming a judgment, the court having the judgment roll before it ought, on its own motion, to ascertain if the complaint supports the findings of fact and the judgment; for neither in this case or any other can a bad complaint support a good judgment. Hence it is that the. sufficiency of the complaint to sustain the findings of fact and the judgment can be raised in the supreme court for the first time. In the case of The Territory ex rel. Blake v. The Virginia City Road Co. this court held: “The appellant now attacks the information for the reason that it does not state a cause of action; and no exceptions having been taken to the rulings of the court below upon the demurrer, and no question saved as to the sufficiency [13]*13of the complaint, the inquiry is presented whether or not the question can be raised in this court for the first time. No exceptions having been saved to the decision upon the demurrer, the complaint stands here precisely the same as if no demurrer had been filed, and we are called upon to determine whether this court can inquire as to the sufficiency of the complaint, the question not having been raised in the court below. It is well settled that the averments of a pleading and the proof must correspond; and it therefore follows that perfect proof cannot aid an imperfect averment, and a perfect averment is unavailing if supported by imperfect proof. If, in order to lay the foundation for recovery, the proof must go beyond the complaint, then the complaint is defective, and will not support the judgment. A judgment is the final determination of the rights of the parties, and must be supported by the pleadings and proofs. If there is a material defect or infirmity in either, the judgment cannot be sustained; and if the defect is in the pleadings, the question can be raised at any time, either before or after judgment, or after appeal to this court. The lower courts have not jurisdiction to render judgment in the absence of a cause of action, and it would be equally erroneous for this court to affirm such a judgment. If there is a judgment for the plaintiff, and the complaint shows upon its face no cause of action, the appellate court will reverse the judgment. A bad complaint will not sustain a good judgment, and the question whether or not there is a cause of action alleged can be raised for the first time in this court; for here, as in every other court, the judgment must fail if the foundation upon which it stands is defective.” 2 Mont. 100, and authorities cited.
One of the grounds of the motion for a new trial was the insufficiency of the evidence to support the findings of fact and the judgment. The overruling of this motion, with a proper exception saved, brings before us the [14]*14testimony, and we are thereby authorized to inquire if the evidence was competent and sufficient to support the complaint and the findings of fact upon which the judgment was based, even in absence of any objections to the testimony. In such a case we must take the evidence as a whole, and ascertain therefrom if it were competent and sufficient, under the issues, to sustain the findings and the judgment. So considering the evidence, we say, first, that proof of special damages was incompetent under the issue of general damages; and, second, that the findings of fact as to special damages were not warranted by the complaint.
2. Another ground of the motion for a newr trial was the insufficiency of the evidence to support the allegations of the complaint, “ that in having the injunction dissolved, and in and about defending the same in said court, these plaintiffs were compelled to, and did, employ counsel, and were necessarily compelled to ¡Day, lay out and expend the sum of $200 in and about the employment and payment of said counsel. ”
The proof shows that the temporary restraining order was dissolved upon a hearing before the judge at chambers, and thereafter the cause, which involved the right to the ownership of certain mining water, was tried in court upon its merits. It further appears from the testimony that the entire fees paid to the attorneys for attending to the case, both before the judge at chambers for a dissolution of the injunction, and for the trial before the court upon the merits, was the sum of $200. There was no charge made and no money paid to attorneys for their services in procuring a dissolution of the injunction. Their services after the injunction was dissolved, in the trial before the court, are not covered by the undertaking. Campbell v. Metcalf, 1 Mont. 378; Allport v. Kelly, 2 Mont. 343; Bustamente v. Stewart, 55 Cal. 115; High on Injunctions, secs. 973, 974, and cases cited.
If any portion of these attorneys’ fees were paid for [15]*15services in procuring a dissolution of the injunction, the testimony fails to show it; and, therefore, the allegation of the complaint concerning attorneys’ fees is unsupported by proof.
The rule of damages is correctly stated by Mr. High in his work on Injunctions, who says: “A reasonable amount of compensation paid as counsel fees in procuring the dissolution of an injunction may be recovered in an action upon the bond, if the injunction was improperly issued, the amount being limited to fees paid counsel for procuring the dissolution, and not for defending the entire case.” High on Injunctions, secs.. 973, 974, and cases there cited.
The judgment is reversed, and the cause remanded for a new trial.
Judgment reversed.