Willis v. Scott

On Rehearing The opinion of the Court was delivered by Todd, J. The rehearing was granted in this case solely with respect to the damages allowed in our decree. It must be admitted that the decisions upon the question whether a 'third person, opposing the sale of his property, seized for the debt of another, and enjoining such sale, is entitled to claim damages in the same suit, for attorney’s fees incurred in the prosecution of the suit, are •somewhat conflicting. But, inasmuch as we have no doubt that such claim might constitute, in some cases, an element of damage to be prosecuted by a separate action, and, moreover, as, in this case, the claim does not seem to have been contested in the lower court, and evidence was admitted, without objection, to support it, thus showing a tacit acquiescence in the right of the plaintiff to prefer such claim in the present action, we are not prepared to say that the allowance of such claim by the lower court, under these circumstances, was wrong; and, without committing ourselves to any decision on this point, we do not feel authorized to disturb our decree affirming the decision of the lower court in this respect.