Curphy v. Terrell

• Citation: 89 Miss. 624,42 So. 235
• Court: United States State Supreme Court of Mississippi
• Decision Date: 26 November 1906
• Parties: JOHN CURPHY, ET AL., v. ALEXANDER TERRELL, ET AL

42 So. 235

89 Miss. 624

JOHN CURPHY, ET AL., v. ALEXANDER TERRELL, ET AL

Supreme Court of Mississippi

November 26, 1906

FROM the chancery court of Warren county, HON. J. S. HICKS Chancellor

Curphy and others, appellants, were complainants in the court below Terrell and others, appellees, were defendants there. From a decree sustaining defendants' motion for an allowance on account of solicitors' fees for services on an appeal (a former one) to the supreme court, against them and the sureties on their injunction bond, complainants appealed to the supreme court.

The case was once before in the supreme court on appeal by appellants from an interlocutory decree of the court below dissolving an injunction and allowing to appellees, as solicitor fees, $ 330 for services in the court below in procuring the dissolution of the injunction. The supreme court affirmed this decree, Munday v. Terrell, 87 Miss. 282 (S.C., 39 So. 477), and when the cause was remanded to the court below, appellants having paid the $ 330 defendants, present appellees, moved the chancery court to allow them additional solicitors' fees for services rendered by their counsel on the appeal, and to dismiss the cause. Evidence was taken to show what was a reasonable fee for the supreme court services, and the court sustained the motion and allowed $ 300 against the obligors on the appeal bond for fees of counsel in the supreme court.

Decree reversed and awarded.

McLaurin Armistead & Brien, for appellants.

As appears from the record of this case on the former appeal to this court, Munday v. Terrell, 87 Miss. 282 (S.C. 39 So. 477), this suit was originally instituted by the present appellants, who sued out an injunction to restrain the present appellees and certain other defendants from interfering with the labor and business of appellants. The court below dissolved the injunction against the present appellees, and assessed $ 330 damages, as solicitors' fees for appellees, against appellants' injunction bond. The above mentioned appeal was taken to this court from that decree, and was here affirmed. When the mandate was returned to the court below, that court, without any litigation having been before it since the appeal and affirmance, without any amended bill having been filed, and without any further steps to cause additional attorneys' fees, on the motion of appellees for assessment of addition solicitors' fees, awarded further damages in favor of appellees to the extent of $ 300 solicitors' fees, which, with the above $ 330, made a total of $ 630. It will thus be seen that after affirmance of the case on appellants' former appeal, they paid the fees formerly decreed by the chancery court, and after the affirmance found themselves required by that court to pay forthwith to appellees another amount as damages representing additional solicitors' fees.

The action of the court below in thus charging additional damages upon appellants after the affirmance on former appeal, was erroneous. We can find no warrant for it under any of the statutes of the state. On examination of the authorities some cases may be found which may seem to warrant the chancery court's action, but they are foreign to our state, and predicated of particular statutory provision.

A careful examination of Code 1892, § 573, will settle the question in our favor. No special provision exists in our code allowing attorneys' fees as damages on injunction bonds, but the same was held to be proper under the general chancery practice, in Baggett v. Beard, 43 Miss. 120. But that case went no further than to allow damages for the "dissolution" of the injunction, though it was a suit at law on the injunction bond. Code 1892, § 573, prescribes the only method by which solicitors' fees may be recovered in a chancery court on dissolution of an injunction, which is, that suggestion to such end must be made in writing stating the nature and amount of the damages, to be considered by the court on the hearing of motion to dissolve. On the trial of this cause in the court below, on motion to dissolve the injunction originally granted, the damages, including solicitors' fees, were suggested in writing. Solicitors' fees, $ 330, were allowed, and were, after affirmance, paid. This is the full extent to which they can be allowed under the statute. And the fact that appeal was taken from the decree allowing the $ 330, does not warrant a subsequent and additional allowance of fees for services in the supreme court.

The authorities are uniform that in interpreting bonds, the doctrine of strict construction applies. Brinker v. Leinkauff, 64 Miss. 236 (S.C., 1 So. 170); Baggett v. Beard, supra. The same rule is laid down by High in his work on Injunctions, vol. 2, sec. 1636. Under the rule of construction of the terms of our statute, Code 1892, § 576, as construed by the above authorities, only those damages which have been suggested in writing can be allowed on a motion to dissolve, and no damages are permissible except damages for "dissolution" of the injunction. All such damages were settled for in the payment of the $ 330. There can be but one "dissolution" of the injunction under the above statute. Hence the allowance of the additional sum of $ 300 was clearly error.

As showing that the injunction bond can only be construed to cover damages up to the dissolution of the injunction, and that it cannot be held to cover any damages for continuance of the injunction in force by appeal, see 16 Am. & Eng. Ency. Law, 452; 2 High on Injunctions, 1636, 1687; Webber v. Wilcox, 45 Cal. 301. Dissolution of the injunction was a dismissal of the bill as to the defendants. Derdeyn v. Donovan, 81 Miss. 696 (S.C., 33 So. 652). And see Wallace v. Dilley, 7 Md., 237; Spellman on Extraordinary Relief, sec. 955; Elwood Mfg. Co. v. Rankin, 70 Ia. 403.

"Fees (assessed as damages in injunction cases) should be limited to services in procuring a dissolution in the court below, and should not include services upon an appeal after the dissolution of the injunction." 2 High on Injunctions, sec. 1687.

The lower court based its action in allowing the additional damages, on the case of Jamison v. Dulaney, 74 Miss. 890 (S.C. 21 So. 972), and especially upon that part of the opinion of WHITFIELD, C. J., which referred to the services of counsel for appellees rendered in the chancery court "and in this court." We submit that this was a misconstruction of the opinion; that the facts of the case will not warrant the holding that the court intended in that case to say, in the face of all the text-books to the contrary, that solicitors' fees for services in the supreme court could be allowed to appellees after they had been previously allowed a reasonable sum for the whole service performed in the court below.

If the court should sustain the contention of the appellees, and affirm the ruling of the court below as to damages allowed, we see no reason why, when this cause should come back again to the chancery court, appellees should not make another motion for damages for services rendered by their counsel in protecting appellees' interests in here litigating this appeal in regard to solicitors' fees; and each appeal, if affirmed, would be the ground for a new motion for damages to protect appellees from being charged a fee by their counsel for services in the supreme court on some branch of the litigation in this case. We think this would come within the condemnation which the federal courts have announced in denying attorneys' fees in injunction cases. Oehlrichs v. Spain, 15 Wall (U.S.), 231.

The injunction bond in this cause was only for $ 500. The above-mentioned $ 330 damages, as to which appeal was taken and affirmance here rendered, were allowed against this bond. Counsel for appellees were aware, on moving for further assessment of damages to cover services on appeal, that the law did not authorize an assessment against the bond for a sum in excess of the penalty of the bond, against which said sum of $ 330 was already charged. 16 Am. & Eng. Ency. Law, 464. Hence they sought to recover, for damages for services in the appellate court, on the appeal bond. This was clearly unwarranted. Code 1892, § 573. The appeal bond was liable only for the costs and damages allowed by the court below, on the dissolution of the injunction, and should not have been taxed with the additional damages sought in this case. Hamilton v. Hardesty, 32 Md. , 348.

Henry & Scudder, for appellees.

We can see no reason why the appellees, the defendants in the court below, should not be as much entitled to damages in the way of allowance for solicitors' fees in having proper defense made in this court against the appellants' attempt to annul the dissolution of the injunction and reinstate the same, as they are entitled to damages for attorneys' fees for services in defending against the injunction and upholding their legal rights in the original procurement of its dissolution in the chancery court.

In Jamison v. Dulaney, 74 Miss. 890 (S.C., 1 So. 972), this court said: "When the case was the second time remanded the counsel for appellee, who had rendered services at all stages of the cause in the chancery court and in this court, were allowed $ 400, less the previous allowance, and this appeal brings into review the propriety of this action of the learned chancellor." The court then cited Hammerslough v. Kansas City, 79 Mo. 87; Thomas v. McDonald, 77 Ia. 302, and Bolling v. Tate, 65 Ala. 417, 428. And the court affirmed the decree of the chancery court which allowed damages for...