Johnson v. Howard

• Decision Date: 09 May 1932
• Docket Number: 29620
• Citation: 167 Miss. 475,141 So. 573
• Court: Mississippi Supreme Court
• Parties: JOHNSON et al. v. HOWARD et al

141 So. 573

167 Miss. 475

JOHNSON et al. v. HOWARD et al

No. 29620

Supreme Court of Mississippi

May 9, 1932

Suggestion Of Error Overruled, June 13, 1932.

(In Banc.)

1 INJUNCTION.

Dismissal of bill establishes that injunction was wrongfully sued out and that defendant is entitled to damages sustained by issuing of injunction (Code 1930, sections 417, 432, 433).

2 INJUNCTION.

Court's lack of jurisdiction to grant injunction held no defense in action on injunction bond (Code 1930, sections 417, 432, 433).

3 INJUNCTION.

That defendants were not damaged, but were only restrained from proceeding in unlawful manner, held no defense in action on injunction bond (Code 1930, sections 417, 432, 433).

4. INJUNCTION. Members of political party could sue as individuals for expenses incurred as result of wrongful issuance of injunction restraining holding of primary elections and conventions (Code 1930, sections 417, 432, 433).

Members of political party could sue individually because political party is an unincorporated voluntary society which cannot contract and be contracted with or sue and be sued, and officers of such society are liable individually, and when they employed counsel to represent them in injunction suit they became personally liable to pay for services of counsel, and also for other expenses incurred as result of issuance of injunction.

5. APPEAL AND ERROR.

Supreme Court, in determining reasonable attorney's fee, may consider importance of litigation, magnitude of interests involved, labor and responsibility of counsel, and judgment of chancellor fixing fee.

6. EVIDENCE.

Opinion evidence of members of bar regarding reasonable attorney's fee is admissible, but is not conclusive.

7. ATTORNEY AND CLIENT.

Court, determining question of reasonable attorney's fee, may add to evidence its opinion based on experience and observation.

8. INJUNCTION.

Award of seven thousand five hundred dollars for services of attorneys in procuring dissolution of injunction restraining holding of primary elections and conventions by political party held excessive by three thousand seven hundred fifty dollars.

9. INJUNCTION.

Expenses not shown to be necessary and not properly separated from expenses incurred before issuance of injunction could not be allowed in action on injunction bond (Code 1930, sections 417, 432, 433).

ETHRIDGE, J., dissenting.

HON. J. L. WILLIAMS, Chancellor.

APPEAL from chancery court of Warren county, HON. J. L. WILLIAMS, Chancellor.

Suit by Perry W. Howard and others against R. L. Johnson and others. From a decree for complainants, defendants appeal. Affirmed in part, and reserved in part.

Reversed in part, and affirmed in part.

Watkins, Watkins & Eager, Julia Sheldon and Louis C. Hallam, all of Jackson, and T. J. Wills, of Hattiesburg, for appellants.

The appellees had no vested right to do that which they were restrained from doing. Upon the other hand they were enjoined from violating the law, and therefore cannot recover damages.

Section 3699, Code of 1906 (sec. 5866, Code 1930); Par. 2, section 1, article 2, U.S. Constitution; Section 247, Const. Mississippi, 1890; Barrett v. Cedar Hill Con. Sch. Dist., 123 Miss. 370, 376, 377, 378, 85 So. 125; Edwards et al. v. Board Suprs. Bolivar County, 124 Miss. 165, 174, 87 So. 8; Section 3721, Code 1906 (sec. 5909, Code 1930).

Damages are recoverable only on invasion of vested legal right.

2 High. Inj. (4 Ed.), p. 559; Guthrie v. Beitham, 25 Ida. 708, 139 P. 718; Sumner v. Crawford (Tex.), 41 S.W. 825; East Tenn. Tel. Co. et al. v. Anderson Co. Tel. Co., 115 Ky. 488, 74 S.W. 218; Stuart v. State, 20 Md. 97, 105, 106; Kulp v. Bowen, 122 Pa. 78, 87, 15 A. 717; Jameson v. Duncan, 12 La. Ann. 785; Hibbs v. Webster Land Co., 81 Iowa 285, 46 N.W. 119; Monroe Bank v. Gifford, 70 Iowa 580, 582, 312 N.W. 881; Parks v. O'Conner (Tex.), 8 S.W. 104; Dole v. Hickey, 6 N.H. 496, 32 A. 761; Parkhill v. Jenkins, 25 Ind. 473; Lowenberg v. Klein, 125 Miss. 284, 87 So. 653; Thompson v. Nicholson, 12 Rob. (La.) 326, 327; Chicago, etc., Ry. Co. v. Whitney, etc., 152 Iowa 520, 523, 132 N.E. 840; Kilpatrick v. Tunstall, 5 J. J. Marsh. (Ky.) 80; Galbreath v. Thayer, 147 Miss. 566, 568, 113 So. 180; Ford v. Loomis, 62 Iowa 586, 16 N.W. 193.

The appellees were not damaged, in that they were only restrained from proceeding in an unlawful manner complained of in the original bill of complaint, and upon the issuance of the injunction, changed their procedure to conform to the requirements of the statutes pointed out in the original bill of complaint; and in that the injunction was nullity ab initio.

Thompson v. Nicholson et al., 12 Rob. (La.) 326, 327; Chicago, Anomas & Northern Ry. Co. v. Whitney, Admr. of estate of Joseph Whitney, 152 Iowa 520, 523, 132 N.E. 840; Kilpatrick v. Tunstall, 5 J. J. Marsh. 80; Galbreath v. Thayer, 147 Miss. 566, 568, 113 So. 180; Ford v. Loomis, 62 Iowa 586, 16 N.W. 193; 15 L. R. A. 274; Jenkins v. Parhill, 25 Ind. 477; Caffrey v. Dudgeon, 38 Ind. 512, 10 Am. Rep. 126; Benedict v. Bray, 2 Cal. 251, 56 Am. Dec. 332; Mark v. Hyatt (N. Y.), 31 N.E. 1099; Montgomery v. Houston Heirs, 44 J. J. Marshall 488, 20 Am. Dec. 223, 225; Ex parte A. T. Wimberly, 57 Miss. 437, 445.

The decree rendered against appellants was excessive both as to expenses and as to attorneys' fees.

Charlotte, etc., R. R. Co. v. Burwell (Ala.), 48 So. 213; Birmingham, etc., Co. V. Norris, 216 Ala. 138, 112 So. 633; Y. & M. V. R. R. Co. v. Consumers Ice, etc., Co., 109 Miss. 43, 49, 67 So. 657; Collins v. Sinclair, 51 Ill. 328; Britt v. McCormick Co. Comm., 117 S.C. 8, 108 S.E. 179; Neiser v. Thoms, 46. Mo.App. 47; Crane v. Roselle, 157 Ill.App. 342; Ala. Power Co. v. Hamilton (Ala.), 77 So. 356; Moss v. Miss. L. S. Sanitary Board, 154 Miss. 765; Humphreys County v. Cashin, 128 Miss. 236, 248, 90 So. 838; Gulfport Land & Imp. Co. v. Augur, 48 So. 722; Alexander v. Concord, 85 Ill. 322, 327, 328; Jeyne v. Osgood, 57 Ill. 340; Hammersdough v. Kansas City, 79 Mo. 87; Dempster v. Lansinch, 234 Ill. 381; Wynne v. Mason, 72 Miss. 424, 434, 18 So. 422; Edward Hines Yellow Pine Trustees v. Knox, 108 So. 907.

Brunini & Hirsch, of Vicksburg, for appellees.

After plaintiff has obtained an injunction and stayed his adversary's proceedings and thereby caused him to suffer damages, it is too late for plaintiff to set up as a defense in an action on the injunction bond a want of jurisdiction to grant the injuction.

32 C. J. 453, section 783.

When a plaintiff files a complaint and bond and procures an injunction to issue from a court of general jurisdiction, he is when sued upon the bond estopped to say that the court granting the injunction was without jurisdiction. They proceed upon the theory that it does not lie in the mouth of one who has affirmed the jurisdiction of a court in a particular matter to accomplish a purpose, to afterwards deny such jurisdiction to escape a penalty.

Robinson v. Smith, 129 Ind. 422; 15 L. R. A. 273.

The dismissal of a bill whether by the court or by the complainant operates as a dissolution of any injunction issued thereunder and establishes the fact that it was wrongfully sued out, and that the defendant is entitled to recover whatever damages he sustained by the issuing of the same.

Griffith Mississippi Chancery Practice 464; Yale et al. v. Baum, 11 So. 879 (Miss.) ; Somerville v. Mayes, 54 Miss. 34, 35; Harrison v. Balfour, 5 S. & M. 301; Alexander v. Woods, 115 Miss. 164, 75 So. 772; 32 C. J. 452, section 782.

We submit that under the laws of this state individuals making up an association cannot sue or be sued as an entity or organization, and that they cannot be liable for debts and obligations incurred except as individuals. Each and every member of the association or organization is personally liable for such obligations incurred in the name of the association and each and every member who participates in or incurs any liability is individually liable for the whole amount just the same as if each and every participant were a partner in a partnership and subject to be sued or to sue as individuals.

Evans v. Lilly & Co., 95 Miss. 58.

Individual members are liable for the contracts of the association, without regard to the question as to what was intended by the members in regard to liability, and despite the fact that the members mistook the law.

Lawler v. Murphy, 58 Conn. 294, 20 A. 457, 8 L. R. A. 113; Evans v. Lilly & Co., 95 Miss. 58; Alkahest Lyceum System v. Featherstone, 113 Miss. 226; Victor et al. v. Adams, 140 Miss. 643; 25 R. C. L., sec. 21, p. 65.

The bill was solely for injunctive relief, and appellees are entitled to their attorneys' fees for services both in the trial and in the appellate courts.

Johnson v. Dulaney, 74 Miss. 890; Curphey v. Derdeyn, 89 Miss. 624; Staple Cotton Association v. Borodofsky, 139 Miss. 368; Miss. Code of 1930, section 417.

The appellees were not restricted to one counsel. The statute does not limit the defendant or defendants to one counsel.

Nixon v. Biloxi, 76 Miss. 810; Miss. Code of 1930, section 419; Leflore County v. Allen, 80 Miss. 298; Freeman v. Lee County, 66 Miss. 1; Vicksburg Waterworks Co. et al. v. City of Vicksburg, 99 Miss. 132; Warren County v. Booth, 81 Miss. 267.

The question of determining the amount of fees for solicitors to be allowed is addressed to the sound discretion of the chancellor.

New Orleans R. R. Co. v. Martin, 105 Miss. 230, 232.

What sum that should be is determinable by the importance of the contest, the labor and responsibility of counsel, and every circumstance attending the cause, which according to established usage serves to guide to a conclusion as to what is a proper professional charge in such a...