ALL ISSUES DETERMINABLE IN A COURT OF EQUITY.

Court of Appeals for Cuyahoga County.

Judges Shohl, Hamilton and Cushing of the First Circuit sitting in the place of the Eighth Circuit.

#### Gray et al v. Gordon.

Decided January 23, 1920.

*Injunction*— Cross-Petition *for Damages on Bond*— Action *in Law or Equity*— Jurisdiction—Appeal *to Court of Appeals*— Dissolution *of Temporary Iniunction*— AP"ineys *Fees and Expenr.s -Action for Damags lies, When.*

1. A plaintiff having invoked the jurisdiction of a court of equity by a proceeding in injunction, the court may determine all issues arising in the case, including one on a cross-petition by the defendant for damages by reason of the injunction, or leave the parties to an action at law upon the injunction bond.

2. A cross-petitioner against whom judgment has been rendered' in such original action in injunction, may prosecute appeal to the court of appeals.

3. A decree dismissing the action and dissolving a temporary injunction, in a proceeding for the surrender and cancellation of certain notes and mortgage, is sufficient for the basis of an action for damages upon the injunction bond although the decree dissolving the injunction does not state that it was wrongfully obtained.

4. In such case attorney’s fees, expenses incurred in procuring the dissolution of the injunction, and loss of time and expenses at the hearings in obtaining the dissolution, are not items for which damages may be had. The cause having .been determined on demurrer, the dissolution of the injunction was only incidental to the result and no additional expenses were incurred because of the injun tion or its dissolution.

*Howell, Roberts & Duncan,*for plaintiffs.

*Mathews, Orgill & Maschke, and James Metzenbaum,*for defendant.

Hamilton, J.

Plaintiffs filed a petition in the court of common pleas of Cuyahoga county, undertaking to allege fraud and misrepresen*539tation in the sale to them by the defendant, of certain property in the city of Cleveland, and seeking the surrender and cancellation of notes, chattel mortgages and stocks given in payment therefor. Incidental thereto plaintiffs procured a temporary restraining order, restraining the defendant from disposing of the notes, mortgages and stock certificates pending the action. An injunction bond in the sum of $500 was executed and a temporary restraining order granted. Defendant demurred to the petition'on the ground that it did not state a cause of action, and the court sustained the demurrer, dismissed the petition, and, afterwards, on motion, dissolved the temporary restraining order.

Further proceedings were taken and an amended petition was filed by plaintiffs, and, in the progress of the case, the defendant filed a cross-petition making the surety company, surety on a bond, a party, and asking for damages by reason of the injunction having been wrongfully issued. The damages claimed were for attorney’s fees and expenses by way of loss of time in defending the injunction proceeding.

Upon the entering of the final judgment in the case, the trial court retained the case for hearing upon the answer and cross-petition of the defendant, and, upon final hearing on the cross-petition, found that the cross-petitioner was not entitled to the relief prayed for and entered dismissal of the cross-petition. Thereupon, the cross-petitioner appealed his case to this court.

Plaintiffs move to dismiss the- appeal for the reason that the action is not a chancery case, but one at law. Plaintiffs having invoked the chancery powers of the court, the rule is that the court can, upon dissolution of the injunction, retain the case and assess the damages arising in consequence of the injunction. The trial court might however, have dismissed the case, and left the parties their action at law on the injunction bond. *Roberts et al*v. *Dust et al,*4 Ohio St., 503, and *The Commercial Tribune Building Co.*v. *Rapid Electrotype Co.,*13 C. C., N. S., 559.

The .filing of the cross-petition setting up the claim for damages by reason of the,injunction was-proper procedure- and the court heard the-case as in the original action. The plaintiffs *540having invoked the jurisdiction of a court of equity, it is entirely proper that such court should determine all the issues in the ease,.although, as before stated, it might have remanded the defendant to an action at law upon the bond. *Commercial Tribune Co.*v. *Rapid Electrotype Co., supra.*

The case is, therefore, properly before this court on appeal and the motion to dismiss the appeal is overruled.

It is urged, on the merits, by plaintiffs, that the defendant is not entitled to recover for the reason that there has been no finding that the temporary restraining order was wrongfully obtained. While this is the language of the bond,.it is not necessary that the decree dissolving the injunction should contain that precise language. The court found that there was no cause of action, dismissed the petition, and dissolved the restraining order. This was sufficient upon which to base an action for damages upon the bond. In substance, it is a determination that the injunction ought not to have been granted. *Columbus, Hocking Valley & Tol. Ry. Co.*v. *Burke et al,*54 Ohio St., 98; *Machold*v. *P., C., C. & St. L. Ry. Co. et al,*4 N. P., N. S., 273, and *Bishop*v. *Bascoe et al,*8 Dec. Rep., pp., 423, 425.

However, the record discloses that the damages claimed are not such as will permit a recovery in this action. The cross-petition claims for attorney’s fees and expenses incurred in procuring the dissolution of the injunction, and for loss of time and expenses at the hearings in obtaining the dissolution. No other item of damages is claimed.

In the case of *Noble*v. *Arnold,*23 Ohio St., 264, the court holds that where the attorney’s fees and expenses are incurred in defeating the action, and the dissolution of the injunction is only incidental to the result, such fees and expenses are not damages sustained by reason of the injunction and no recovery therefor can be had upon the undertaking.

In the case at bar the main action was one to set aside the sale on the ground of fraud and misrepresentation, and for the delivering up and cancellation of certain instruments in writing, and the injunction against the transferring of the instruments in writing pending the action was only incidental to the main *541action. The cause was determined on the demurrer, and the dissolution of the injunction was only incidental to the sustaining of the demurrer, dismissing the petition. No additional attorney’s fees or expenses were rendered necessary by the allowance of the injunction, nor in procuring the dissolution thereof, as disclosed by the record. Any fees paid would have been paid if the injunction had never been allowed, as the questions were determined by the demurrer. *Riddle et al*v. *Cheadle, 25*Ohio St., 278.

It is therefore apparent from the record that the cross-petition sets up no enforceable claim against the bond.

The cross-petition will be dismissed. A decree may be entered in favor of the plaintiffs.

Shohl, P. J., and Cushing, J., concur.