Martha occasionally was in the home. About three weeks after the second marriage, Elizalbeth ceased to live with her brother. William remained in his father's home for several years. The two sisters moved to Denver, Colo., in 1889, Elizabeth in April, and Martha in June. William followed in 1890, remaining in Denver till 1891, when he went to Garfield county to live on a ranch; the sisters remaining in Denver, and Martha being engaged in teaching school, and Elizabeth in dressmaking. Meanwhile the plaintiff and her husband continued to live in l'ennsylvania. Some time later, Charles II. Park first came to Denver on a visit to his sisters, where he remained for about three months, then went to his son's ranch, and afterwards returned to his wife in PennsylVania. In May, 1897, he returned to Colorado for his permanent residence, and was folJowed by his wife some time in October of the siune year. They kept a boarding house in Denver for several months. Later-just when is not altogether clear from the evidence he left Denver with the intention of no longer living with his wife, and went to the ranch of his son in Gartield county, and there brought a suit for divorce, which seems iufterwards to haye been removed for trial to one of the courts in the city and county of Denver.

In the light of the foregoing, the particular facts presented by plaintiff, in her briefs, and which she says are legally sufficient to establish the charges she makes against defendants, have thus been stated by her counsel: That the morning after plaintiff's marriage. Elizabeth and Martha stated to her that she must have given their brother love drops and done all the courting; that they had not the least idea that he would bring a young girl like her to his home, and, when plaintiff replied that she and her husband loved each other, they laughed at her. That William made it unpleasant for her after

came to lier husband's home by shooting lier in the eye with an arrow while she was engaged in Washing, and Elizabeth justified her nephew's conduct by saying that his father did not care if he broke every window in the house. William seemed to be of the same opinion and stated to plaintiff that he did not see why his father married her and brouglit her to his home. Martha and Elizabeth insisted on having a folding door between their room and plaintiff's kept open, and insinuated that plaintiff communicated a vile vise ise to their brother. William virtually took charge of and "ran the house" without consulting plaintiff, and on one or cision made a violent assault upon her. Elizabeth and Martha told plaintiff their family diel not want her, and that her talk about love was nonsense, there was nothing of it in the world, and that she would have to give up her husband. After defendants (ame to ('olorado, they wrote several letters to plaintiff's husband. which plaintiff says

she saw, the purport of which was the acknowledgment of the receipt of money which her husband had sent to them, and these letters also contained invitations to the husband to come out to William's ranch; that he, but not plaintiff, was needed there. On receipt of these letters, the husband seemed to be dissatisfied, and would not be like himself, not speaking for days at a time. That after he returned from his first visit to Colorado to their home in l'ennsylvania his conduct was changed, and again he seemed to be dissatisfied. That the return of Charles to Colorado in May, 1897, was without warning to plaintift, and she was ignorant of his whereabouts for about a week, when she re(eived a letter from him in Denver and after some correspondence between her and her husband she came to the city of Denver. Upon her arrival there, her husband was not at the train to meet her, as had been arranged whereupon she went to the schoolhouse, where Martha was engaged in teaching, and found her there; but Martha refused to shake hands with her, and falsely told her that her husband was at William's ranch, and when plaintiff expressed an intention of going there Vartha said she was not wanted. That after plaintiff and her husband had kept a boarding house in Denver for about four months, he opened up communication with defendants, and trouble with plaintiff was renewed. That William assisted his father, and furnished him money to bring the divorce suit, and that the husband got about $300 of her money from the bank and left her without any support when he took up his permanent residence with his son at the ranch.

We have thus detailed the various facts which plaintiff claims that the evidence establishes, and which, for the purposes of this case, she says must be taken as true, and as legally sufficient to uphold a verdict in her favor, had the jury returned one. We do not say that the evidence establishes all these facts, but we may assume that her claim in that respect is well founded. In their testimony defendants positively deny ever having made any efforts whatever to induce plaintifl's husband to leave her, or to alienate his affections. In every material point the three defendants squarely contradict plaintiff in her testimony, and they are corroborated in important particulars by certain facts and circumstances which it is not necessary to mention. It nowhere appears in this record as a fart, and not at all, unless unfounded suspicions which plaintiff undoubtedly entertains, and unwarranted inferences which she deduces, are to be treated as facts, thut either of the defendants ever sought improperly to influence her husband agilinst, or to turn his affections from, her, or to persuade him to abandon or cease to live with her. There is not a particle of evidence that any of the staternents which she testifies they made to her were ever communicated to her

are concerned, we do not have before us a case where the court refused to admit them. With respect to the husband's letters to his wife, which it is said were excluded by the court, we say, first, that it does not clearly appear from the record whether they were admitted or rejected. They are reproduced in the abstract, and an examination of them shows that they contain nothing whatever tending in any degree to prove the plaintiff's cause of action, or to corroborate her testimony. Their tendency is to contradict her in every important particular, and, if they were excluded by the court, such ruling in nowise prejudiced the plaintiff.

3. Counsel uses strong and extravagant language in characterizing the conduct of the trial judge as unfair to the plaintiff. We have examined the record with much care, but are unable to discover any evidence of unfairness. Indeed, great latitude was allowed plaintiff in her attempt to show that defendants had wronged her. If any errors were committed in rulings on evidence, they were against the defendants, rather than the plaintiff.

Plaintiff signally failed to prove her case, and in directing a verdict for defendants and dismissing the action the court was clearly right, and its judgment is therefore affirmed.


STEELE, C. J., and GABBERT, J., concur.

husband either by them or her, or that his alleged desertion, or loss of affection, were in any degree caused by their acts or conduct. It may be true that neither of the defendants liked the plaintiff, or approved of her marriage, after they became acquainted with her; but, if either of them was guilty of the charges which she makes against them in her complaint, there is no legal or sufficient proof of it in this record. Had the jury returned a verdict upon this evidence in plaintiff's favor, it would have been the duty of the court to set it aside as having no legal support and manifestly against the weight of the evidence. Mere suspicions in which plaintiff indulges, and inferences from conduct that a sane mind would not draw, are not sufficient to justify a recovery of damages, and the court did right in directing a verdict for the defendants. Plaintiff's contention that her case is aided by the defendants' own evidence is wholly without merit. There is nothing in the testimony of either of the defendants, or any evidence produced by them, that tends in any degree, directly or indirectly, to sustain, or render probable, any of the charges contained in the complaint.

2. Counsel strenuously argues that the court erred in not permitting plaintiff to testify to her husband's declarations made to her during the existence of the marriage, and in refusing her offer of his letters written to her during corerture. Reliance is had on Williams v. Williams, 20 Colo. 51, 37 Pac. 014, wherein the court held, in a similar action by the wife, that declarations of the husband having reference to his separation, or contemplated separation, were admissible for the purpose of showing what had probably caused such separation, though his mere declarations were not admissible to show what defendant's conduct really was. In that case the objection to such declarations which apparently defendant interposed was that declarations of a person not a party to an action are incompetent. The objection made here) seems not to have been made there, at least was not discussed by the court, that under section 482, Mills' Ann. St., neither husband nor wife during the marriage or afterwards shall be, without the consent of the other, examined as to any communication made by one to the other during the marriage. But assuming that such declarations are proper under the authority of the case cited, we are of opinion that no such question is here presented. The declarations of the husband apparently were considered by counsel for both parties to be incompetent without the husband's consent, and when plaintiff's counsel called him as a witness, and asked him if he would consent that his wife might testify to his declarations that occurred during the marriage in relation to the cause of separation, and he refused to give his consent, no attempt was made to interrogate plaintiff with reference thereto, or to prove such declarations. So far as the oral declarations

(16 Wyo. 58) LITTLETON et al. v. BURGESS. (Supreme Court of Wyoming. Oct. 7, 1907.) 1. APPEAL-CHANGE OF VENUE-BILL OF ExCEPTIONS-NECESSITY.

The question of error on ruling on a motion for a change of venue cannot be considered where there is no bill of exceptions.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2361.) 2. INJUNCTION-UNDERTAKING-PARTIES.

Rev. St. 1899, § 4043, provides that no injunction shall operate until an undertaking is given to secure the damages incurred by the party enjoined. Section 1107 provides that the county and prosecuting attorney shall prosecute or defend for the state or county in all civil or criminal suits or proceedings at law in which the state or county is a party. Held that, where &n injunction was issued restraining the county and prosecuting, attorney from prosecuting a party for violating the anti-gambling law, the undertaking properly ran to the attorney individually, as neither the state nor county was a party. 3. COURTS-JURISDICTION-ESTOPPEL TO ов. JECT.

Where one invokes the power of a court of general jurisdiction to obtain an injunction, he cannot thereafter be heard to say, in avoidance of damares for injury resulting therefrom, that the court had no jurisdiction.

[El. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, $ 149.] 4. SAME-DISTRICT COURT-EQUITY JURISDICTIOX.

The district court has original equity jurisdiction,


Although the court had no jurisdiction to enjoin a prosecuting attorney from prosecuting for a crime, attorney's fees incurred in procuring the dissolution of the injunction and in defeating the action were damages within the terms of the undertaking given on the granting of the injunction.

[Ed. Vote.-For cases in point. see Cent. Dig. vol. 27, Injunction, $ 597.1 6. SAME.

The attorney's fees incurred were recorerable in an action on the undertaking, though not actually paid.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, $ 597.) 7. APPEAL-QUESTIONS REVIEW ABLE.

Where, on appeal from a judgment in an action on an undertaking given on the issuance of an injunction, the record failed to show that a motion for an itemized bill for attorney's fees was made, or that objections were made or exceptions taken to the admission of evidence on the ground that such fees were not itemized, the question could not be considered. 8. PARTIES-PARTIES PLAINTIFF-WHO ARE.

All having interests in common with those of plaintiff in the subject-matter of a suit should be joined as plaintiffs; but, on a refusal to join as such, they may, on appropriate averments, be made defendants.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Parties, $$ 54, 55.] 9. PARTIES -- DEMURRER — GROUNDS LEGAL CAPACITY TO SUE.

Under the express provisions of Rev. St. 1899, $ 353, it is only when the plaintiff has no legal capacity to sue that a demurrer will lie on the ground that he has no capacity to sue ; the words "legal capacity to sue" referring to infancy, want of authority, or any personal disability to maintain the action.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Parties. $ 118.]

Error to District Court, Sheridan County ; Charles E. Carpenter, Judge.

Action by James II. Burgess against Fred Littleton and another. Judgment for plaintiff, and defendants bring error. Affirmed.

M. B. Camplin, for plaintiffs in error. Chas. A. Kutcher, E. E. Enterline, and Lonabaugh & Wenzell, for defendant in error.

brought into the record by such a bill. It was so decided in Perkins v. McDozell, 3 Wyo. 328, 23 Pac. 71, and that decision has ever since been the rule of practice in this court.

2. Plaintiffs in error demurred to the petition on three grounds, viz.: First, that the petition does not state facts sufficient to constitute a cause of action; second, that there is a defect in the party plaintiff, appearing on the face of the petition, in this, that “James H. Burgess" in his individual capacity, or as an individual, is not the proper party plaintiff, but that the face of the petition discloses the proper party plaintiff to be either James H. Burgess, as county and prosecuting attorney of Sheridan county, Wyo., or the state of Wyoming; third, that the plaintiff has no capacity to sue, as disclosed from the face of the petition. The demurrer was overruled, and the defendants were given time within which to plead, to which ruling they reserved an exception, and such ruling is here assigned as error.

It is alleged in the petition that James H. Burgess was the duly elected and qualified county and prosecuting attorney in and for Sheridan county during 1901 and 1905; that on August 20, 1904, the plaintiff in error Littleton commenced an action in the district court of Sheridan county against said Burgess, county and prosecuting attorney of Sheridan county, Wyo., the object and purpose of which was to restrain and enjoin the defendant therein, as county and prosecuting attorney of said county, from causing the arrest and prosecution of the said Littleton for a violation of the anti-ganıbling law, and from further prosecuting him in a proceeding wherein he had been duly charged and arrested for a like offense; that upon application to the judge of said district court a temporary injunction was directed to issue restraining and enjoining said Burgess, as such county and prosecuting attorney, from causing the arrest and from prosecuting said Littleton for the alleged violations of the law, upon said Littleton giving an undertaking in the sum of $1,000 conditioned as required by law. Thereupon Littleton, as principal, and Schroeder, as surety, executed and filed the undertaking involved in this suit, which was approved by the clerk of the dis. trict court, and the writ issued and was served upon Burgess. The undertaking is in the following words, to wit: “Bond for Injunction. Whereas, in the above-entitled action, a temporary injunction has been granted as prayed in said petition on file herein, the same to become effective and be in force upon the plaintiff executing a bond to the defendants in the sum of one thousand dollars, conditioned as required by law: Now, therefore, we, Fred Littleton, as principal, and Fred Schroeder, as surety, acknowledge ourselves to be held and firmly bound unto said defendant in the sum of $1,000.00, conditioned that the said plaintiff will pay said

SCOTT, J. This action was brought in the district court of Sheridan county by the defendant in error, as obligee, against the plaintiffs is error, as obligors, to recover upon an injunction undertaking given and executed by Littleton, as principal, and Schroeder, as surety, in an action wherein the said Littleton was plaintiff and the said Burgess, county and prosecuting attorney of Sheridan county, Wyc., was defendant. The case was tried without the intervention of a jury, and the court found and rendered judgment in favor of Burgess. Littleton and Schroeder bring the case here on errol.

1. Plaintiffs in error (defendants below) complain that the trial court denied their motion for a change of venue.

That question cannot be here considered. for the reason that there is no bill of exceptions, and the motion and afidavit in support thereof, not being pleadings in the case, can only be

91 P.-53


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defendants and each of them all damages fait that Breeze bad ceased to be treasurer which they may sustain if it be finally deter of Routt county at the time of the commencemined that said injunction ought not to ment of the action, a motion to dismiss was have been granted. In witness whereof, we sustained on the ground that at the time of have hereunto set our bands this 20th day, the commencement of the action Breeze was of August, A. D. 1901. (Signed] Fred Little not the treasurer and had no authority to ton, Principal. Fred Schroeder, Surety." It bring it. The plaintify then asked leave to is further alleged that thereafter such proceed-, withdraw his second amended complaint and ings were bad therein that on March 22, 1905, to substitute and reinstate his first comjulaint. judgment was duly entered in said cause by This motion was denied, and judgment of diswhich it was adjudged that said temporary missal was ordered. The ('ourt of Appeals injunction ought not to have been granted, reviewed the judgment and held that the and the action was dismissed, that there words descriptive of the plaintiff in the secafter, upon proceedings in error, this court ond amendeel complaint were unnecessary, affirmed the said judgment; that said Bur and further said: "Yo considerable injury gess contracted and obligated himself to pay can result to the defendants by permitting the sum of $1,000 as attorney's fees in the the plaintiff to abandou his second amendeel defense of said action and to secure the dis complaint and fall back on his first." In solution of the injunction, in which sum he that case it was also said : "It is true that has been damaged and prays judgment there

the collection of taxes was a duty which perfor.

tained to his office as treasurer of the county, It will be observed that the injunctional , but it was a duty for the performance of suit was against James II. Burgess, county ¡ which he was personally responsible." In and prosecuting attorney of Sheridan county, the case before us it was a duty pertaining W'yo., and that the undertaking runs to to the office of county and prosecuting attorJames II. Burgess as an individual. It is ney to prosecute the case for the state, and contended that the undertaking is not such | Burgess, having qualified as such officer, was as required by law, in that it was not made personally liable on his official bond for a to the defendant in his official capacity, but failure to do so. Section 1107, Rev. St. 1899. to him personally, and that as such it did not There can be no question that he had a perconstitute a basis for the issuance of the sonal interest in the defense of the injunction writ; and, also, that the writ was void be suit in order to avoid personal liability upon cause the court had no jurisdiction of the his official bond. lIis authority to act in subject-matter of the action. It is provided the matter of the prosecution of the criminal hy statute that the undertaking shall be gir case was derived from his office. The state en “to secure the party enjoined the damages looked to him for benefits from the performhe may sustain if it be finally decided that ance of his official duties, but whether or not the injunction ought not to have been grant he would act in the performance of those dued." Section 4013, Rer. St. 1899. The facts ties was a matter personal to himself. That alleged in the petition were not sufficient to he was about to act in the prosecution of Litinvoke the exercise of equitable jurisdiction. tleton was the matter complained of, and it It was not such an action as is contemplated was those acts which were sought to be reby the statute in prescribing the duties of strained by the injunction. This being the the county and prosecuting attorney. Sec case, it follows for the purposes of this suit tion 1107, Rer. St. 1899, provides that the that the undertaking properly ran to Burgess county and prosecuting attorney shall prose individually, and that the action thereon was cute or defend for the state or county in all maintainable in his name. Section 4043, Rev. civil or criminal suits or proceedings at law St. 1899; Breeze T. Haley et al., supra. in which the state' or county is a party. Vei That the court bad no jurisdiction to enther state nor county was a party to the ac join the prosecution of crime by the prosetion. Both were strangers to the injunction cutiny ofiicer was decided by this court in suit, and neither had nor could have any in Littleton vi Burgess, 14 W'yo. 173, 83 Pac. terest in or title to the proceeds of any 861, ? L. R. A. (X. S.) 631. It does not, howjudgment recovered on the undertaking. In ever, follow that, because of absence of such Breeze v. Haley et al., 13 Colo. App. 138. 59

jurisdiction, no action can be maintaineel uj Par, 333, Breeze was temporarily enjoined on the undertaking given and upon which as county treasurer from collecting taxes. the writ issued. When in such a case one The undertaking ran to him individually. invokes the power of a court of seneral juand, upon determination that the writ ought risdiction, he cannot thereafier be heard to not to have been granted, suit for damages : sily, in avoidance of damages for injury rewas commenced on the undertaking against sulting therefron, that the court was without the obligor and his sureties. The first com jurisdiction. 22 Cyc. 1040, and cases there Dilaint was entitled “Lewis II. Breeze. Plain- ! cited. The district court possesses original tiff.“ while the second amended complaint equity jurisdiction. In Robertson 1. Smith, was entitled "Lewis H. Breeze, as Treasurer 12. Ind. 428. 28 X. E. $77, 15 L. R. A. 73, of Routt ('ounty. Plaintiff, v. Ora IIaler et it was alleged as a defense to an action on al., Defendants." There was 10 answer to un injunction bond that the order granting the complaint, and, upou admission of the the injunction was void for want of jurisdic

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tion over the person of the defendant, and up right to defend either upon the merits or on demurrer it was held insufficient to consti upon jurisdictional grounds accrued to him tute a defense. The case is an instructive upon the service of the writ (Walton V. one and discusses the question of jurisdiction Develing, 61 Ill. 201), and by no sophistry of the subject-matter as well as of the person, of reasoning could he be barred of that right. as affecting the right to recover in such cases. The right having so accrued, he had the right After reviewing the authorities and quoting to be represented by counsel. If the attorfrom the opinions in Adams v. Clive, 57 Ala. ney's fees were incurred to procure the dis219, Hanna v. McKenzie, 5 B. Mon. (Ky.) 314, solution of the injunction, then by the great 43 Am. Dec. 122, and High on Injunctions, $ weight of authority the defendant in error 1002, as sustaining the proposition that want was damaged to that extent. 22 Cyc. 1053, of jurisdiction over the subject-matter of the andi cases there cited: Robertson v. Smith, injunction suit is not a defense to an action supra; Noble v. Arnold, 23 Ohio St. 20.). In on the injunction bond, the court said: “We the last-mentioned case, the court said that regard these authorities as establishing the "a distinction is to be taken between expenses proposition that, when a plaintiff files a com. incurred only in procuring a dissolution of an plaint and bond, and procures an injunction injunction, and such as are incurred in the to issue from a court of general jurisdiction, defense of an action, to which the injunction he is, when sued upon the bond, estopped to is merely auxiliary, and is not essential to say that the court granting the injunction the relief sought.” This distinction runs all was without jurisdiction. They proceed up through the adjudicated cases, where such on the theory that it does not lie in the fees are allowed as an element of damage in mouth of one who has affirmed the jurisdic

an action upon the bond. In the case before tion of a court in a particular matter, to ac us, the ob'ect of the writ was to perpetcomplish a purpose, to afterward deny such ually enjoin the defendant from doing the jurisdiction to escape a penalty.” To the acts complained of, and the attorney's fee cases mentioned and discussed by that court

was, as appears from the petition, reasonable may be added the following cases, where and necessary to procure the dissolution of want of jurisdiction over the subject-matter the temporary injunction and defeat the acto issue the writ was also held to be no de tion. It is held by the Supreme Court of fense to an action upon the injunction bond, Kentucky that when injunction is the relief and which were also referred to in that case, sought, and in fact gives the relief if sustainviz. : Stevenson v. Miller, 2 Litt. (Ky.) 310, ed, no recovery for counsel fees can be had. 13 Am. Dec. 271; Hoy v. Rogers, 4 T. B. Tyler v. Hamilton, 108 Ky. 120, 55 S. W. 920; Mon. (Ky.) 225 ; Cumberland Coal & Iron Co. Turnpike v. Dulaney, 86 Ky. 518, 6 S. W. V. Hoffman S. C. Co., 39 Barb. (N. Y.) 16. 590: Chicago, etc., R. Co. v. Sullivan, 26 Ky. The question is so clearly set forth and the Law Rep. 16, SO S. W. 791. That court apprinciple so clearly stated in the above quota parently stands alone in drawing this distinction that it would be useless to try to enlarge tion. We think the reasoning is better in upon it. We regard it as decisive of the

Reese v. Northway, 58 Iowa, 187, 12 N. W. question here presented.

258, where it is held that attorney's fees are It is urged that damages within the terms allowable for defending in the entire action of the undertaking do not include attorney's where injunction is the only relief sought, fees, and that, as tủe trial court bad no ju and dissolution is procured only upon final risdiction to issue the writ, there was no hearing. This rule is announced and foloccasion or necessity to employ counsel. The lowed in Creek v. McManus, 13 Mont. 152, Supreme Court of Alabama, in Rosser v. Tim 32 Pac. 673. While the temporary injunction berlake, 78 Ala. 162, said: “It is a mistike was dissolved by the trial court, such expensto suppose that, because there is no proof es for reasonable attorney's fees as were of present injury by the injunctive and re necessary in defending in the proceedings straining order, there was no occasion to en in error were so incurred to avoid a reversal ploy counsel to defend it. Any suit brought, of the order and a reinstatement of the injuncif not defended, may result in costs, if not tion, and therefore properly chargeable. Walin it more grievous wrong against defendant. lis v. Dilley, 7 Md. 237. Nor does it follow It does not lie in the mouth of complainant, that there can be no recovery for attorney's who has forced another into court, to claim fees incurred, though not actually paid. In exemption from liability on the plea that his Xoble v. Arnold, supra, the court said upon suit was so harmless or frivolous as not to this subjert: “An indebtedness incurred-a (all for defense." In the case before us, liability to pay—is a damage, and we think the plaintifi's in error forced the defendant is sufficient to constitute a liability on the in error into court to determine at least a undertaking." Such is the well settled rule. question of jurisdiction—a question which 16 Ency. of Law, 109. was a judicial one, and which he could not It is further objected that the attorney's determine himself-and to ignore the writ fees for defending the action and those necesmight have resulted in great wrong to him. sary for obtaining a dissolution of the inNo. obligation rested upon him to ignore the junction are not itemized or separated. It writ, even though it was issueil without ju is apparent from what has already been said risdiction. Robertson V. Smith, supra. His that upon the facts alleged there can be no

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