This is an action on a bond for damages for the alleged wrongful suing out of an emergency restraining order. Service was had on only the Maryland Casualty Company, surety on the bond, in whose favor final judgment was entered. Plaintiffs have appealed.
Sarah E. Smith and Eugene R. Day, stockholders of the Hecla Mining Company, a corporation, brought an action to enjoin the Company and its officers from consummating a proposed purchase by it and the Bunker *Page 149 Hill Sullivan Mining Concentrating Company of certain mining property belonging to the Star Mining Company. They asked for an emergency or temporary restraining order without notice, an injunction pendente lite, and for a final permanent injunction. The temporary restraining order was granted without notice, upon condition that the plaintiffs in that suit file a bond in the sum of $10,000. A bond was given by them in that amount with the Maryland Casualty Company of Baltimore, Maryland, as surety. The order granting the temporary restraining order and fixing the amount of the bond also fixed a time and place and required the defendants therein to show cause why an injunction pendentelite should not be granted. The Hecla Mining Company and its officers appeared on the return day, and thereafter from time to time according to orderly continuances by the trial court, during which hearings considerable testimony was taken on behalf of the parties, at the conclusion of which the trial court orally announced that the injunction pendente lite would be denied, and thereupon, on oral motion of the defendants, the temporary restraining order was dissolved, and immediately an order was made and entered denying injunction during the pendency of the suit and setting aside the temporary restraining order theretofore issued. On the next day, without any further evidence or argument, an order was entered dismissing the action.
The record contains no statement of facts, so that the case stands here on the findings made by the trial court, to which no exception was taken. Counsel for both sides have elaborately and interestingly discussed and analyzed a large number of authorities consisting of cases in this and other courts as well as text writers on the subject of liability on injunction bonds for damages *Page 150 such as are alleged here, including the necessity of a motion to dissolve, and as applied to cases where injunctive relief was either the primary or ancillary purpose of the suit. In the case of Anderson v. Provident Life Trust Co., 26 Wash. 192,66 P. 415, wherein only injunctive relief was sought, in speaking of the rule which allows such damages as reasonable attorney's fees in procuring the dissolution of an injunction or restraining order, the reason for the rule is given in a quotation, 2 High, Injunctions (3d ed.), § 1686, as follows:
"The allowance of counsel fees as damages upon dissolving an injunction is based upon the fact that defendant has been compelled to employ aid in ridding himself of an unjust restriction, which has been placed upon him by the action of plaintiff."
Doubtless the other kinds of damages sued for in this action fall in the same class as counsel fees, within that rule.
In the present case, the finding of the trial court is "that the plaintiffs in this action necessarily spent in and about the resisting of the said application for an injunction pendentelite, in the way of attorney's fees, the sum of $15,000, and in court costs $1,708.73, and in sampling the Star Mine, $3,051.17, and in making maps and plats, the sum of $1,500, and the payment of witnesses for traveling expenses and services more than $10,000, all of which sums were paid by the Hecla Mining Company." That is, the costs for recovery of which this action was brought were spent in resisting the application for an injunction pendente lite. In the case of Thompson v. Benson,41 Wash. 70, 82 P. 1040, it was said:
"It was held in Donahue v. Johnson, 9 Wash. 187,37 P. 322, that attorney's fees are not recoverable in an action on an injunction bond, where no motion for *Page 151 the dissolution of the injunction is made, and it is allowed to stand until defeated by a trial upon the merits."
The same reason applies here where the temporary restraining order was allowed to stand without any motion against it until defeated by a trial upon the application for an injunctionpendente lite, which trial resulted in a denial of such application. Such is the result because of the terms of the bond. This principle was recognized in Mann v. Becker, 90 Wash. 534,156 P. 396, which was an action on an injunction bond for damages. In the original suit in which the bond had been given, the defendant therein appeared specially and prevailed with a motion to quash the service. In denying recovery on the injunction bond the court said:
"The bond was not conditioned as a guaranty of a valid service. On these facts, we can see no controlling significance in the fact that the only relief sought was injunctive."
In the present case, the terms of the bond sued on afford no guarantee or protection against damages by way of costs and expenses incurred in the hearing on the application for an injunction pendente lite, or in a final hearing for a permanent injunction, but only that the "principals shall pay, or cause to be paid, all damages and costs which may accrue to said defendants, or either of them, by reason of said restrainingorder."
Upon the findings, which show that the attorney's fees and costs sought to be recovered were spent for a reason outside of the terms of the bond, it follows that the judgment appealed from must be and it is affirmed.
TOLMAN, C.J., FULLERTON, and MACKINTOSH, JJ., concur. *Page 152