I concur in the reversal of the judgment in this case, but I do not think the conclusions reached by the majority are correct for the following reasons.
The plaintiff in the court below was permitted to introduce his evidence and make out his case as if the amendment, now admitted to be error, had already been made, and, notwithstanding the objection of defendant, all of the testimony offered by the, plaintiff to establish his contention was admitted by the court, and hence this court has the full record before it for consideration. This record discloses the injunction bond with the usual conditions, the original and amended bills in the chancery suit praying that a restraining order be issued pending the termination of the suit preventing respondents (appellees here) from selling, disposing of, or hiding out, any of the cows described in the bill of complaint, except according to the terms and conditions of a certain contract made an exhibit to the bill; that at the hearing of the cause a lien be declared in favor of the complainants upon the cows described, and for a permanent injunction against the appellant from selling, or otherwise disposing of, any of the cows, except where the same are replaced by cows of equal value, until the appellee had fully paid for the cows according to the terms and conditions of the contract, the demurrer to the original bill, the decree sustaining the *Page 192 demurrer to the original bill, the amended bill, the decree overruling the demurrer to the amended bill, the certificate of the clerk of the Supreme Court reversing the decree of the lower court on demurrer and dismissing the bill. Thereupon plaintiff offered evidence by a reputable attorney as to what would be a reasonable attorneys' fee for dissolving an injunction in a case similar to the one then on trial, which was testified to be more than $300. But on cross-examination he testified:
"I have not fixed the fee for the actual services rendered as disclosed by the record in this case, but am only able to state what the usual and customary fees are in litigated cases where advised as to the amount involved. The fees which I have named are the fees recommended by the Mobile Bar Association and are considered as reasonable fees. I have no idea as to the amount of services rendered by the attorneys in dissolving said injunction further than the statement of the hypothetical question that the case is a litigated one."
There was no evidence that a motion had been made to dissolve the injunction, or that any attorney had been employed for that special purpose, or that any service had been rendered in the procuring of the dissolution of the injunction other than the services rendered in the defense of the main case. There was no evidence of any special damage other than above stated.
Where counsel fees are incurred in procuring the dissolution of an injunction improperly or wrongfully issued, such fees are recoverable as part of the damages incident to the restraint imposed if it appears that this expense has been occasioned by reason of the issuance of the injunction. Jesse French Piano Co. v. Porter, 134 Ala. 302, 32 So. 678, 92 Am. St. Rep. 31. But where the injunction is merely ancillary to the principal relief sought by the bill, and its dissolution is only incident to the defense made, and the counsel fees are incurred in defending the suit generally, they cannot be assessed as damages. 14 R. C. L. p. 486, § 189; Walker v. Pritchard,135 Ill. 103, 25 N.E. 573, 11 L.R.A. 577. Such fees, when recoverable, are limited to those necessary in procuring a dissolution of the injunction, and services rendered in making a general defense on the merits are excluded. Bolling v. Tate,65 Ala. 417, 39 Am. Rep. 5; Jackson et al. v. Millspaugh,100 Ala. 285, 14 So. 44; Curry et al. v. American Freehold Land Mortgage Co., 124 Ala. 614, 27 So. 454; High on Injunctions, § 1686; 22 Cyc. 1053. And it has been said that —
"If a defendant, instead of attempting to remove the preliminary injunction, seeks rather to prevent the issuing of a permanent injunction, or directs his efforts to defeating the action of the plaintiff, the expense of counsel fees incurred is an incident to the suit and is not recoverable as damages sustained by reason of the injunction." 14 R. C. L. p. 488; Curtiss v. Bachman, 110 Cal. 433, 42 P. 910, 52 Am. St. Rep. 111.
And "if there is nothing to show what portion of the services were rendered in attempting to procure such dissolution as distinguished from those rendered in general defense of the suit, there can be no recovery." Lambert v. Alcorn, 144 Ill. 313,33 N.E. 53, 21 L.R.A. 611.
It has never been the policy of the law of this state to impose a penalty upon persons instituting suits in the courts to enforce their claims, unless in doing so extraordinary remedies are employed, and not then, unless the extraordinary writ caused damages other than such as would ordinarily follow from the defense of the suit independently of the expense incident to the defense against the extraordinary writ.
It appearing from this record that under the rulings of the trial court the plaintiffs were given every opportunity to introduce such testimony as they desired, and it appearing further from the court proceedings in the injunction suit that no motion was made to dissolve and that these plaintiffs merely adopted the demurrer of Davis, who is not a party to this suit, but was the original defendant in the injunction suit; that instead of attempting to remove the preliminary injunction the plaintiffs, by adopting the demurrer of Davis, the original defendant in the injunction suit, sought rather to prevent the issuance of a permanent injunction, or directed their efforts to defeating the action, and there was an entire absence of any evidence tending to show any special services of an attorney in the procurement of the dissolution — I am of the opinion that the plaintiffs would not be entitled to recover special damages or counsel fees in this action, and, therefore, to remand this cause would be useless. And it further appears that there was a breach of the injunction bond, and therefore the plaintiff was entitled to nominal damages, but under the facts that was all he would be entitled to: and therefore, this cause having been tried and determined by the court without a jury, this court should proceed to render such judgment as the court below should have rendered. *Page 193