Alexander v. Woods

• Decision Date: 18 June 1917
• Citation: 75 So. 772,115 Miss. 164
• Court: Mississippi Supreme Court
• Parties: ALEXANDER ET AL. v. WOODS ET AL

75 So. 772

115 Miss. 164

ALEXANDER ET AL. v. WOODS ET AL

Supreme Court of Mississippi

June 18, 1917

March 1917

Division A

APPEAL from the circuit court of Adams county, HON. R. E. JACKSON Judge.

Suit by Bartley Woods and others against John Alexander and others for damages resulting from the wrongful suing out of an injunction. From a judgment for plaintiffs, defendants appeal.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Chas F. Engle and Wm. C. Martin, for appellant.

At the February Term, 1916, appellants had the cause set down for final hearing upon the issue docket on bill and exhibits and answers and exhibits, no testimony having been taken by complainants. Thereupon complainants moved to dismiss their suit, and it was dismissed by a decree to that effect which taxed complainants with the cost.

In dismissing their bill as complainants did they at once make themselves liable upon the injunction bound at the suit of appellants. The dismissal of a bill upon which an injunction has been obtained, though made without prejudice operates as a dissolution of the injunction, conclusively establishes that the injunction was wrongfully sued out and entitles the obligees in the bond to sue for its breach. Yale Bowling v. Baum, 70 Miss. 226. Upon this record appellants as plaintiffs below were undoubtedly entitled to recover on the bond such damages as they could show.

Attorneys' fees incurred in obtaining the dissolution of an injunction constitutes part of the damage sustained and are recoverable on the injunction bond. Baggett v. Beard, 43 Miss. 120; Freeman v. Board of Supervisors, 66 Miss. 1.

And on the trial of a suit in the circuit court upon an injunction bond after dissolution of the injunction complainants have a right to prove what a reasonable fee would be and recover it as part of the damages. Yale v. Baum, 70 Miss. 225.

The fact is that the minds of opposing counsel and the court below became confused at this point, and the court, in giving the peremptory instruction for defendants, undoubtedly thought that appellants had lost their right to sue because they had failed to make and press a motion to dissolve. With notice of damages sustained, before the chancery court in cause 2826. The same false idea seems to have been besetting counsel for defendants below, as will be seen from a careful reading of their obscure motion for a peremptory instruction, found on page 70 of the record. This record shows conclusively that nothing was adjudicated in the chancery court except a matter of the court costs; there was no hearing in that court whatever upon the question of damages. In fact appellees, by dismissing their bill, seems to have been trying to get out of that court without any adjudication of damages, as soon as they could. However, that may be there certainly was no such adjudication, and in such case the right to sue at law, as was done here, is a statutory right, secured to litigants by the concluding paragraph of section 624 of the Code of 1906. The lower court, in sustaining the motion for a peremptory, beyond question overlooked the controlling effect of this section 624, as well as the decision, straight to the point, of Yale v. Baum, supra.

This argument was made to the lower court by opposing counsel that because in the chancery court, they could have adjudicated this matter of damages, therefore, by failing to do it there, that subject became res adjudicata, and could not be litigated in the circuit court afterwards. We doubt whether this argument would have had any real force even though the thing had not been settled by statute, but we must confess our surprise that the court acquiesced in the force of such argument when the statute says so plainly: "But nothing herein contained shall prevent the party entitled from maintaining a suit on the injunction bond, if his damages shall not be assessed as herein provided for."

We will not weary the court farther, but will close with the request that this case be reversed and sent back for a new trial.

Ratliff & Kennedy, for appellee.

Our contention is that under this state of facts, the plaintiffs are not entitled to recover any damages on the injunction bond in this suit.

The bond does not relate back and it only provides for the payment of such damages and costs as might be sustained by the wrongful suing out of the injunction.

The only thing done by which either costs or counsel fees were incurred or could have been incurred was in the vain and fruitless appeal to the supreme court and this honorable court has decided that they had no right to the appeal; that none would lie in such case, and we, therefore, contend that in no event could the injunction bond be liable for costs and counsel fees incurred in a proceeding, which they had no legal right to take, and as shown by the record, this is in truth everything that was done from which costs of counsel fees could possibly have been incurred.

But if we should be mistaken in this regard, we contend further that the whole matter was res adjudicata, because the defendants in the injunction suit had propounded their claim in that suit and it had become a part of the pleadings in that case and under that all...