¶1dissenting.
¶2The defendants in their answer set ont the proceedings in the divorce case in full, and insist that the matters attempted to he litigated in this suit were adjudicated in the divorce suit. This is the entire defense relied upon. The case was tried in the court where the divorce suit was determined. The jury was waived, and the trial court found for the defendants. The majority opinion ignores the real issue.tried in the lower court, and treats the case as though it were solely a controversy over the amount of attorney’s fees that might be recovered. Some of the courts hold that in an ordinary action in equity upon dissolving an injunction the court should enforce- the payment of damages caused by the injunction. This is the rule in the federal courts. Coosaw Mining Co. v. Farmers’ Mining Co., 51 Fed. 107. It is the rule in some of the states, in the absence of a statute, and in several of the states it is made the rule by express statute. In England it is discretionary with the court. Whatever the rule may be in ordinary actions in equity, I think there can be no doubt of the correctness of the judgment of the trial court in this case.
¶3In the original petition' for divorce, which was upon the ground of cruelty, the property owned by the husband and wife is described in full, a,nd it is alleged that the husband is attempting to dispose of property that belongs to the wife, as well as his own'property, so as to prevent the judgment of the court, in regard to the property rights of the parties, being enforced. A temporary injunction was allowed restraining the husband from disposing of the property while the action was pending. Upon the granting of this injunction the bond was given upon which this action was brought. The action was tried by the court upon a stipulation of facts from which it appears that after the injunction had been granted in the divorce suit the parties to that suit entered into a stipulation concerning the property, which included all of the property *487affected by the injunction. The stipulation was that all of the property affected by the injunction, except some cattle that were conceded to be the property of the plaintiff in that suit, should be sold at public auction at a specified time and place, and the proceeds thereof placed in the hands of one Goodrich, cleric of the sale, and .held by him subject to the order of the district court, “as though the property had not been sold, neither the plaintiff nor the defendant waiving any of their rights in this case.” After the property had been sold pursuant to this stipulation, the money being in the hands of Goodrich, a motion was filed to vacate the injunction upon two grounds: First, that the petition does not state facts sufficient to authorize it; and, second, that the facts stated in the petition were untrue. Several weeks after-wards the court made an order dissolving the injunction as to the property of the defendant in that suit, but in the order and as a part of the same order it was recited: “It appearing to the court that the property mentioned in the petition has been sold and that the proceeds of said sale are in the hands of O. 0. Goodrich”; and the court thereupon ordered that the said proceeds remain in the hands of Goodrich “until hearing be had by court as to the ownership of same, and as to whom the same may belong.” This was in reality not an order dissolving the injunction in any respect. The effect of the order was to continue the injunction as it was originally made until the final trial of the case. The proceeds of all the property were in the hands of Goodrich, as a result of the sale at the time the order was made, and by force of the order remained in his hands until the case was tried. The district court, and as I think rightly, considered that it was its duty to determine all of the property rights of the parties upon the final trial: Immediately after this order was made the defendant in that case filed a motion for an order requiring Mr. Goodrich “to pay Frank Darling, defendant”, the proceeds of the sale of his personal property, describing particularly all of the property that *488it was claimed belonged to the defendant in that suit. This motion was never passed npon by the court, except as the whole matter was decided in the final decree.
¶4By the final judgment the court gave to the plaintiff Zaidee Darling $250 “from money in the hands of O. 0. Goodrich”, being a portion of her personal property in lieu of alimony, so that by final decree of the court all of the property of the defendant and a considerable portion of the property claimed by the plaintiff was given to the defendant. The final decree contained these words: “That the injunction heretofore granted herein as to all the other money in the hands of 0- O. Goodrich, except the aforesaid sum of $250, is hereby dissolved, set aside and vacated.”
¶5It seems to me that there can be no doubt that in this final distribution of the personal property it was the duty of the court to take into consideration all matters arising out of the litigation in that case in favor of one of the parties and against the other, and if the defendant was entitled to attorney’s fees for services rendered in the action, such claim must have been taken into consideration by the court in finally adjusting the rights of the parties. The district court so considered it, and rendered, in this action upon the bond, a judgment in favor of the defendants. I do not think that the majority opinion determines or considers the matter adjudicated by the district court, and I think that it follows from the foregoing considerations that the judgment of the district court in this case is correct and should be affirmed.