[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 552 The appeal of the defendants in this case was from the judgment, upon the ground that it was erroneous in not adjudging damages against the plaintiff, and for the reasons stated in the exceptions served. No findings of fact were made by the referee in regard to the subject of damages; nor were any requests made to find, which would present the question fairly, whether any damages were proved, or whether the referee erred in not awarding damages. Nor was any appeal taken from the order overruling the exceptions to the referee's report. As the case stands the question was not properly presented upon the defendant's appeal, and is not now before us.
If, however, the record presented the questions raised by the appellant's counsel, the right of the defendants to damages by reason of the injunction issued in this action, was not shown before the referee, and the claim was not sustained by evidence. It does not appear that any proof upon the subject of the alleged damages was introduced before the referee who was authorized to determine whether any damages had been sustained, and if any, the amount of the same, and there is no basis upon which the referee could have made an estimate of any actual damages incurred. As the case stood, a report in the defendants' favor would have been without any evidence to support it.
It is claimed that at any rate a counsel fee should have been allowed. There was no proof of payment of a counsel fee, or that any charge had been incurred on that account, and as the referee, in the exercise of his discretion, determined otherwise, we think there is no legal ground for interfering with his decision in this respect. In most of the *Page 554 cases cited by the appellants' counsel, where a counsel fee was held to be a proper item of damages, it appeared that it had actually been paid. Within the scope of these decisions it clearly was not imperative upon the referee to make such an allowance, without some proof upon which to found his conclusion.
Nor is there any ground for claiming that the provisions of 2 Revised Statutes ([Edm's ed.], 196, §§ 141, 142 and 143) furnish us a standard for measuring damages, the deposit to be made of the amount of the judgment in pursuance of section 141, and that this is to be substituted instead of proof what the damages were. The injunction was granted upon the ordinary undertaking required by the Code, and evidently was in the proper form for such an order where the plaintiffs were entire strangers to the judgment of the defendants, the collection of which was enjoined. The statutes cited have no application to such a case; but only related to parties to the same action, and their privies. It is alone in this class of cases that a deposit is required, which may be applied in satisfaction of the judgment, when the court determines that it is valid and binding. But even if these provisions were at all applicable, the deposit was dispensed with by an acceptance of the undertaking, and the defendants should be left to pursue their remedy by proving what the damages sustained actually were. If they received the amount realized on the sheriff's sale of the property, or it was within their control, then they would probably have lost nothing, and as there was no proof to show how this was, or that any damages were incurred, it cannot be claimed that they sustained any loss.
The judgment must be affirmed.
All concur.
Judgment affirmed. *Page 555