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The record shows that B.H. Wakefield and J.S. Chase, being the holders and owners of a certain chattel mortgage for the principal sum of $1,500, given by W.R. Bates and Audney Bates, his wife, covering the crops grown on certain lands, did on December 5, 1921, place an affidavit in the hands of the sheriff of Canyon county, Idaho, with instructions to foreclose the said chattel mortgage above mentioned by notice and sale, and out of the proceeds to pay the said $1,500 alleged to be due on the said chattel mortgage.

The affidavit and instructions directed the sheriff to sell other property besides that described in the chattel mortgage.

The sheriff, acting upon the said affidavit and instructions, took possession of 600 sacks of potatoes, some of which were not covered by said mortgage, and noticed the same for sale to pay the said sum of $1,500 and costs of foreclosure.

On December 9, 1921, W.R. Bates and Audney Bates commenced an action in the district court of Canyon county, against B.H. Wakefield, J.S. Chase and B.W. Kinney, as sheriff of Canyon county, and secured an injunction in said action ordering said sheriff to refrain and desist from further proceeding to foreclose said chattel mortgage, and from in any manner interfering with, selling or disposing of the personal property in said mortgage described, until the further order of the court.

The plaintiffs in said action, W.R. Bates and Audney Bates, at the time of securing the said injunction, filed in said action an undertaking in the sum of $700 conditioned for the payment of such damages, not exceeding $700, including $75 attorneys' fees, as the parties enjoined might sustain by reason of said writ if the court finally decided that said plaintiffs were not entitled to said injunction. The undertaking was signed by the respondents herein.

No attempt was made by any of the defendants in said action to have said injunction dissolved, but they filed a demurrer to the complaint, which was overruled, and thereupon they filed their answer and cross-complaint. The case *Page 56 was tried to a jury, who in answer to certain interrogatories submitted to them found that $600 had been paid on the said $1,500 mortgage and that only 525 sacks of potatoes seized by the sheriff were covered by the said mortgage.

Thereupon the court ordered that the injunction be dissolved and that defendants Wakefield and Chase have judgment against W.R. Bates and Audney Bates for $900 principal, $150 attorneys' fees and interest and costs, and that said judgment was a lien on the said 525 sacks of potatoes.

Appellants assign four specifications of error, which are to the effect that the court erred in instructing the jury to find for respondent Griffiths, and that the judgment is contrary to law, and not supported by the evidence.

Appellants in this case made no motion to dissolve the injunction in the case brought by Bates and wife, nor did they appeal from the order granting the said injunction, but they filed an answer and cross-complaint in that action and defended the action in a trial upon the merits, at the conclusion of which the court gave judgment of foreclosure of the said chattel mortgage and at the same time dissolved the temporary injunction, there being no further need for the same.

It is contended by appellants that the decision of the trial court at the conclusion of the trial on the merits, that the injunction should be dissolved, amounted to a finding by the trial court that W.R. Bates and Audney Bates were not entitled to the temporary injunction at the time the same was granted, and that the same was improperly issued.

We cannot agree with this contention. The judgment in that case showed that Wakefield and Chase were claiming $600 more than was actually due them on the said mortgage and that they had caused the sheriff to seize and notice for sale property not covered by the said chattel mortgage. C. S., sec. 6385 provides:

"The right of the mortgagee to foreclose, as well as the amount claimed to be due, may be contested in the district *Page 57 court by any person interested in so doing, for which purpose an injunction may issue if necessary."

This action clearly gave W.R. Bates and Audney Bates the right to an injunction to restrain the sale until the amount due and the property covered by the said chattel mortgage was finally determined.

It has been urged by respondent Griffiths, in this action, that no bond or undertaking on injunction is required under the above-mentioned section of our statutes. We cannot agree with that contention. Section 6772 of our statutes stated definitely when an undertaking on the issuance of an injunction shall not be required, and we find nothing in our statutes or decisions to justify the contention of counsel that an undertaking is not required under C. S., sec. 6385.

The ultimate dissolution of a temporary injunction after a trial on the merits does not amount to a finding that the temporary injunction was not properly issued; generally it is dissolved as a matter of course after the rights of the parties have been determined.

The facts, as found by the trial court, show that the sheriff took possession of property not covered by the chattel mortgage, that he was attempting to collect a greater sum than was owing on said mortgage, and it clearly appears that the issuance of an injunction was necessary and proper to prevent the sheriff, who was proceeding under appellants' direction, from selling property not covered by the said chattel mortgage.

The foregoing facts bring the case within the rule announced in Charters v. Fidelity Deposit Co., 32 Idaho 612,186 Pac. 921, and Ferrel v. Coeur d'Alene etc. Transp. Co., 29 Idaho 118,157 P. 946, where the court held that:

"Where a temporary injunction is granted as ancillary to the main relief sought and no attempt is made to dissolve it or obtain a decision that its issuance was improper or unnecessary, either by motion or on appeal, and the only resistance thereof is by defending in the main action, counsel fees and costs in connection therewith cannot be recovered from the sureties on the injunction bond." *Page 58

We recommend that the judgment of the trial court be affirmed, with costs to respondent.

Babcock and Adair, CC., concur.

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