Brown v. Baldwin

• Decision Date: 13 March 1894
• Citation: 25 S.W. 863,121 Mo. 126
• Parties: Brown et al. v. Baldwin et al., Appellants
• Court: Missouri Supreme Court

25 S.W. 863

121 Mo. 126

Brown et al. v. Baldwin et al., Appellants

Supreme Court of Missouri, Second Division

March 13, 1894

Appeal from Madison Circuit Court. -- Hon. James D. Fox, Judge.

Affirmed.

B. B Cahoon for appellants.

(1) The supreme court alone has jurisdiction of this appeal, the amount in controversy and claimed by the appellants being largely in excess of $ 2,500, and the title of real estate (the fixtures in question) being directly in issue. Const 1875, art. 6, sec. 12; Gerke v. Gerke, 100 Mo. 237; State ex rel. v. Lewis, 96 Mo. 146; Co. v Guggemos, 24 Mo.App. 144; Willi v. Lucas, 40 Mo.App. 70; Gardner v. Terry, 99 Mo. 523; Searen v. Blackwell, 40 Mo.App. 625; Dunn v. Miller, 96 Mo. 324. (2) Under the claims made in the motion to assess damages, and under the facts of this appeal, the following cases are inapplicable. State ex rel. v. Gill, 107 Mo. 49; Wolf v. Matthews, 98 Mo. 246; Anchor Milling Co. v. Walsh, 97 Mo. 287. (3) Appellees in the main case ante p. 106, raised in the circuit court constitutional questions and questions of title to this real estate, which are likewise involved in this motion in that, if the views of appellees herein, being the appellants in the main case, are sustained, appellants herein would not be entitled to a final recovery of damages on the injunction bond. Consequently the appeal of said motion is properly before this court. Art. 6, sec. 12, constitution of Missouri; State ex rel. v. Court of Appeals, 105 Mo. 642; Baldwin v. Fries, 103 Mo. 286; State ex rel. v. Court of Appeals, 97 Mo. 281; Insurance Co. v. Hill, 86 Mo. 466; S. C., 12 Mo.App. 148; Humes v. Railroad, 82 Mo. 221; Response to Inquiry by Gov., 58 Mo. 369. (4) The appeal by appellees herein from the circuit court's judgment, dissolving the injunction did not continue in force the injunction. Hence the hearing of this motion now, pending and before that appeal has been determined by the supreme court, is proper. Teasdale v. Jones, 40 Mo.App. 243; Neeser v. Thomas, 46 Mo.App. 37; Laws, Mo. 1891, p. 70; High on Injunctions [1 Ed. 1873], sec. 893, and note; 2 High on Injunctions [Later Ed.], secs. 1536, 1709; Leonard v. Land Co., 115 U.S. 465; State v. Dillon, 96 Mo. 56; R. S. 1889, secs. 4647, 5500, 5501, 2449, 2286, 2288, 2289; Guilford v. Cornett, 4 Abbott Pr. (N. Y.) 220; Hoyt v. Carter, 7 How. (N. Y.) 140; Hoyt v. Gelston, 13 Johns. 139; Wood v. Dwight, 7 Johns. Ch. 295; Gasson v. Carpenter, 4 Stew. & Car. (Ala.) 336; 67 Mo. 544; 16 Mo.App. 341; 17 Mo.App. 41; 19 Mo.App. 144. (5) Attorney's fees for appellants for the preparation of and for the trial of the whole case in the circuit court should have been assessed and there was neither basis for nor justification of the action of the circuit court in splitting up said fees. Holloway v. Holloway, 103 Mo. 285; Brownlee v. Fenwick, 103 Mo. 431; Hammerslough v. Association, 79 Mo. 81. The circuit court allowed but $ 200 on account of appellants' attorneys' fees, while appellees' testimony showed they were worth at least $ 750 for the resistance by appellants of appellees' injunction. (6) Besides attorneys' fees (and rents to be hereafter treated), all damages of every character suffered, met or paid by appellants in resisting said injunction are to be assessed by the circuit court on her motion to assess such damages on the dissolution of the injunction, notwithstanding an appeal was taken from the judgment dissolving the injunction. Teasdale v. Jones, 40 Mo.App. 243; Stump v. Hornback, 109 Mo. 120; Brownlee v. Fenwick, 103 Mo. 430-432; Hale v. Megan, 39 Mo. 272; Bircher v. Parker, 40 Mo. 120. (7) Among the damages to be allowed on such motions are a reasonable attorney's fee paid or agreed to be paid. High on Injunction, sec. 974; 69 Mo. 120; Buford v. Packet Co., 69 Mo. 611; Skrainka v. Oertel, 14 Mo.App. 474; Holthaus v. Hart, 9 Mo.App. 1; Walsh v. Lackland, 8 Mo.App. 122; Bohan v. Casey, 5 Mo.App. 10; Buford v. Packet Co., 3 Mo.App. 159; Lessee v. Railroad, 2 Mo.App. 105. (8) Expenses of the litigation of any character, including loss of time of the parties preparing their cause for trial and in attending court upon the case at any time. Railroad v. Schneider, 30 Mo.App. 624; Skrainka v. Oertel, 15 Mo.App. 566; Walsh v. Lackland, 8 Mo.App. 122; Leissee v. Railroad, 2 Mo.App. 105. (9) Rents for the use of real estate during the period the party has by the litigation consequent upon the injunction been deprived of its possession. Stump v. Hornbeck, 109 Mo. 280; Brownlee v. Fenwick, 103 Mo. 431; Bircher v. Parker, 40 Mo. 120; Hale v. Morgan, 93 Mo. 272. (10) Loss of the property by fire pending the injunction. Bircher v. Parker, 40 Mo. 120; Kennedy's Adm'r v. Hammond, 16 Mo. 541.

M. R. Smith and Wm. Carter for respondents.

(1) This court is without jurisdiction to hear this proceeding. Const. art. 6, sec. 12; Kerr v. Simmons, 82 Mo. 273; State ex rel. v. Court of Appeal, 97 Mo. 281; Anchor Milling Co. v. Walsh, 97 Mo. 287; State ex rel. v. Gill, 107 Mo. 49. (2) The appellants are entitled only to such damages caused them on account of time lost and money expended, including a reasonable attorney's fee, in defending against the injunctive feature of the suit for improvements, and not for time lost and money expended in defending against the main suit for improvements. First. Purpose of granting injunction. R. S. 1889, sec. 4647; Tissier v. Hill, 13 Mo.App. 38; Stump v. Hornbeck, 109 Mo. 280; Malone v. Stretcher, 69 Mo. 25; R. S. 1889, secs. 5498, 5501; Dorris v. Carter, 67 Mo. 544. Second. Attorney's fees should be apportioned in this case. Holloway v. Holloway, 103 Mo. 285; Langworthy v. McKelvey, 25 Iowa 48; Collins v. Sinclair, 51 Ill. 328; High on Injunction, sec. 974, and notes; Walker v. Pritchard, 25 N.E. 573; Mackey v. Plumb, 36 Ill.App. 604; Thomas v. McDaniel, 42 N.W. 301; Zibill v. Barnett, 30 Ill.App. 112; Lamb v. Shaw, 45 N.W. 1134; Taber v. Clark, 25 P. 181; Lambert v. Alcorn, 33 N.E. 53; Lawrence v. Trainer, 136 Ill. 447. Third. The ancient chancery practice after coming in of answer on motion to dissolve the writ. 2 Daniel's Chan. Prac. [4 Ed.], p. 1675, and note 7; Minturn v. Seymour, 4 John. Ch. 173; 2 Daniel's Chan. Prac. [4 Ed.], p. 1678, and citations; High on Injunction, secs. 1001, 1005, and note 2; Robert v. Anderson, 2 Johns. Chancery, 444; High on Injunction, sec. 880, et seq.; Shepley's Brief, 14 Mo. 75. Fourth. Upon the hearing on motion to dissolve, burden of proof on motioner. High on Injunction, sec. 881; Miller v. Washburn, 3 Ired. Eq. 161. Fifth. Character of action in other states as to the injunction process. Beard v. Dahsty, 2 S.W. (Ark.) 701; Van Valkenberg v. Ruby, 3 S.W. (Tex.) 748; Fowler v. Schafer, 32 N.W. 292; Counts v. Kitchens, 7 S.W. (Ky.) 538; Henting v. Redden, 16 P. 820; Fisher v. Edington, 1 S.W. (Tenn.) 499; Van Bibber v. Williamson, 37 F. 756 (Ohio) . Sixth. The adoption of the statute as to improvements did not abrogate the existing equitable remedy. Riley v. McCord, 24 Mo. 265; State v. Bittinger, 55 Mo. 599; Tucker v. Insurance Co., 63 Mo. 594; Hanna v. Davis, 20 S.W. 688; Coal Co. v. Bingham, 97 Mo. 212. (3) Appellants are entitled only to damages for the reasonable rental value per annum from the date of serving the writ of injunction up to the date of the judgment of the lower court, for the land, including the buildings thereon, used and occupied by respondents for a factory site. High on Injunction, sec. 965; Wallis v. Dilley, 7 Md. 97; Burgen v. Sharer, 14 B. Mon. 497. (4) Respondents say that under the evidence the machinery of every kind whatsoever, including boilers, engines and their appurtenances used by them in manufacturing staves, are chattels and not fixtures, and for that reason appellants have no interest in the rents and profits arising therefrom. Thomas v. Davis, 76 Mo. 76; 2 Kent's Com., p. 343; Padjit v. Cleveland, 11 S.E. (S. C.) 1069; 32 Cent. Law Journal, 202; Manwaring v. Jenison, 27 N.W. 899; Aldine Mfg. Co. v. Barnard, 84 Mich. 632; Vail v. Weaver, 19 A. 138; Smith v. Whitney, 18 N.E. 229; Jones v. Bull, 19 S.W. 1031; Brown v. Light and Power Co., 55 F. (C. C.) 229; Gregg v. Railroad, 48 Mo.App. 494; Bartlett v. Haviland, 92 Mich. 552. "A trade fixture as a rule will be regarded as personalty." Frederick v. Deval, 15 Ind. 357; Hey v. Bruner, 61 Pa. St. 87; 4 Lead. Cases Am. Real Prop., pp. 519, 520; Ewell on Fixtures, title, "Trade Fixtures," pp. 91, 92 and 93, and particularly note 3.

OPINION

Gantt, P. J.

This is an appeal from the judgment of the circuit court of Madison county, on the motion for the assessment of damages on the injunction bond, given by appellees, in the proceedings to recover the value of permanent improvements, wherein the judgment was rendered for appellants and the injunction dissolved, which judgment has been affirmed by this court.

After the ejectment suit of Pool v. Brown, 98 Mo. 675, 11 S.W. 743, had been decided adversely to the defendants, they commenced their action under the statute to recover the value of their improvements and gave bond and obtained an injunction to stay execution pending their ascertainment. The condition of the bond is that "they shall pay all damages that may be occasioned by said restraining order or injunction to said Carrie Baldwin and Thomas Baldwin."

On the trial of this motion the defendants, Mrs. Baldwin and her husband introduced the proceedings leading up to the injunction and its dissolution. They also introduced the bond, and all the evidence that was offered in the suit for improvements. They introduced the evidence of Mr. Mollineaux the superintendent of the Browns, to show the character, and the size of the engines, boilers, saws, and other machinery used in said factory. Their claim for rents and profits was based...