Reed v. Brandenburg

143 P. 989, 72 Or. 435, 1914 Ore. LEXIS 51

• Court: Oregon Supreme Court
• Decided: September 29, 1914
• Status: Published

Opinion

Opinion by

Mr. Chief Justice McBride.

1. The principal question raised on this appeal turns upon the construction to be given to Section 418, L. O. L., which reads as follows:

‘‘ The undertaking and affidavits, if any, upon which the injunction is allowed, shall be filed with the clerk. The order may be served as a summons and returned to the clerk, with the proof of service indorsed thereon; except that the service shall be made upon the defendant personally. The order may be filed with the clerk at once, and shall be deemed to be served upon the defendant from the date of its allowance, if it appear therefrom that the defendant appeared before the court or judge at the allowance thereof.”

We are of the opinion that the language which dispenses with the service of the order in cases where the “defendant appeared before the court or judge at the allowance thereof” should be interpreted as referring to any case where the defendant had made an appearance and contested tÉe granting of the order. It is a common practice for courts to grant preliminary injunctions without notice to the opposite party, and in such cases common justice would indicate that a party could not be required to obey an order the contents and entry of which had not been brought to his attention ; but where the proceeding is brought to his notice, and he appears and contests the issuance of the order, the mere fact that he was not present in the courtroom when it was actually entered is not so vital as to render the order of no effect. Service of a copy is made upon him. Having appeared, it is his business to keep himself informed of further proceedings in the case, and it may be stated as a general rule that, when a party makes a general appearance in a proceeding, that appearance is presumed to continue until the termination of such proceeding, unless there is some statute or rule of court requiring further notice.

2. It is also claimed by defendants, that the complaint does not state facts sufficient to constitute a cause of action; but, while indefinite in many particulars, we think it good upon general demurrer. It sets up the filing of a complaint in the suit and the prayer therein for a temporary injunction restraining plaintiff in this action from “using, selling and disposing of certain hay and potatoes, and pasture [described in the complaint filed in said suit] and from interfering with plaintiff in any wise whatsoever, in entering said place and premises for the purpose of selling, disposing and marketing of said crops, harvested and unharvested, and of using, renting and disposing of said pasture and that upon final adjudication of this suit the temporary injunction he made permanent.” It then sets up the filing of the undertaking, giving a copy of it; the issuing of the injunction with a copy of it; the subsequent vacation of the injunction; the dismissal of the suit at the cost of the plaintiff therein; the fact that it was wrongful and without cause, with the following allegation of damages:

“That by reason of said temporary injunction order, so issued in said suit, plaintiff was damaged in the sum of $2,500 in this, to wit: For injury to plaintiff’s business as a farmer and stock feeder and for the time and trouble spent by plaintiff in looking after and in procuring the vacation of said temporary injunction order, and for money paid out and expended for counsel and attorney fees, and for his expenses in and about the procuring of the vacating, setting aside and holding for naught of said temporary injunction order. ’ ’

3, 4. The trouble given plaintiff and the time and money expended by him in procuring the vacation of the injunction order are legitimate items of damage, and the injury to his business as a farmer and stock feeder are also legitimate items. It is true they are imperfectly stated, but if the defendants had wished to compel a clearer statement, their remedy was by a motion to make more definite and certain, of which they failed to avail themselves.

5. Attorney’s fees expended in procuring a dissolution of an injunction are legitimate items of damage in cases of this kind: 22 Cyc. 1005; Olds v. Cary, 13 Or. 365 (10 Pac. 786). And this rule extends even to attorney’s fees paid upon an unsuccessful motion to dissolve, if the injunction is eventually found to have been wrongful: Olds v. Cary, 13 Or. 365 (10 Pac. 786); Andrews v. Glenville Woolen Co., 50 N. Y. 283.

6. It is also claimed that there was no evidence of damages to go to the jury, and it is particularly argued that, the complaint in the injunction suit not having been introduced in evidence, there is no testimony identifying the particular hay and other matters included in it. The injunction order prohibited plaintiff from disposing of or in any way exercising any control or dominion over the rye or wheat hay mentioned in the complaint. Although the defendants admitted the making of the injunction order, and thereby admitted knowledge of the contents of the order and to what it referred, there was no testimony, either written or oral, identifying the hay which plaintiff testified he refrained from selling as the same hay mentioned in the complaint. It is true that he testifies he had hay, and that he did not sell it on account of the injunction, but in the course of a long examination he never stated that the hay about which he was testifying was the hay mentioned in the complaint in the injunction suit. As to this item of damage there was no evidence, but as to attorney’s fees expended in procuring a dissolution of the injunction there was enough evidence to go to the jury.

The judgment will be reversed and a new trial ordered.

Reversed.

Mr. Justice Eakin, Mr. Justice Bean and Mr. Justice McNary concur.