Edward E. Morgan Co., Inc. v. City of Natchez

• Court: Mississippi Supreme Court
• Writing for the Court: McGehee, J.
• Citation: Edward E. Morgan Co., Inc. v. City of Natchez, 196 So. 251, 188 Miss. 781 (Miss. 1940)
• Decision Date: 27 May 1940
• Docket Number: 34178
• Parties: EDWARD E. MORGAN CO., INC., et al. v. CITY OF NATCHEZ

196 So. 251

188 Miss. 781

EDWARD E. MORGAN CO., INC., et al. v. CITY OF NATCHEZ

No. 34178

Supreme Court of Mississippi, Division B

May 27, 1940

APPEAL from the chancery court of Adams County, HON. R. W. CUTRER Chancellor.

Suit by Edward E. Morgan Company, Incorporated, and others, against the City of Natchez, for an injunction. From a decree dismissing the bill with prejudice and awarding to defendant the sum of $ 750 as attorney's fee on account of the suing out of a temporary injunction, complainants appeal. Reversed, and decree directed for complainants.

Reversed and decree here for appellant.

Harold Cox, of Jackson, for appellants.

City incurred no legal liability for additional attorneys' fees in this case, and such fee was contingent in nature.

13 C J. 477; 32 C. J. 453, sec. 785; Leggett v. Vinson, 155 Miss. 411; Riley v. Hardy, 189 So. 514; Clark v Miller, Rev. Agt., 142 Miss. 123.

The resolution prepared by the city ratifying employment of Laub in this case was insufficient as a contract with the city to create any liability against it for such employment.

Sec. 2902, Code of 1930; Kidder v. McClanahan, 126 Miss. 179.

Appellants are not liable for any fees due from the City of Natchez to its special attorney in this case because no part thereof was incurred in any effort to dissolve the restraining order.

Houghton v. Cortelyou, 208 U.S. 149; Wynne v. Mason, 72 Miss. 424; Galbreath v. Thayer, 147 Miss. 556; Griffith's Chancery Practice, p. 490, sec. 464; 32 C. J., p. 28; p. 435, sec. 746; p. 436, sec. 747; p. 474 (note); U.S. F. & G. v. Jackson, 123 Miss. 676; Town of Dadeville v. Wynne (Ala.), 70 So. 197; Howell v. McLeod, 127 Miss. 1; Hunter v. Hankinson, 141 Miss. 279; Thornton v. O'Quin, 115 Miss. 857; Staple Cotton Co-op Assn. v. Buckley, 141 Miss. 483; Kendrick v. Robertson, 145 Miss. 585; Lundy v. Greenville Bk., 179 Miss. 282.

The mayor admitted that the city incurred no liability to Laub for a fee in this case and did not desire to prosecute the motion for damages and said motion ought to have been dismissed.

Patterson v. State, 177 Miss. 227.

Though a restraining order is essentially federal practice, its issuance with bond is approved practice in this state.

Castleman v. State, 94 Miss. 615; Mayor v. State, 103 Miss. 645.

Contract of city with law firm of Engle & Laub was a joint contract binding each partner to perform the legal service required for the city.

Vicksburg Water Wks. v. Mayor and Aldermen of Vicksburg, 99 Miss. 132; Gwin v. Greenwood, 159 Miss. 110; Clark v. Miller, 154 Miss. 233; 20 R. C. L. 1003, sec. 241; Dowd, Extrx., v. Troup, 57 Miss. 204; Clifton v. Clark, 83 Miss. 446.

S. B. Laub, of Natchez, for appellee.

In Mississippi jurisprudence there is no such thing as a restraining order, what was issued was an injunction.

Griffith's Chan. Practice, page 474, par. 448; Castleman et al. v. State, 94 Miss. 615, 47 So. 647.

The Federal practice of the issuance of a temporary restraining order is found solely upon statute.

Houghton, Trustee, v. Cortelyou, Postmaster General, 208 U.S. 149, 52. L.Ed. 432.

We, therefore, conclude that under the Mississippi practice, a temporary injunction without notice was granted to the appellant on his bill praying for same in this case and that upon a hearing that the same was dissolved or dismissed. Such being the case, under a long line of decisions in our jurisprudence the appellant ipso facto becomes liable to the appellee on the bond for such damages as appellee incurred by the suing out of the writ.

Yale et al. v. Baum, 11 So. 879, 70 Miss. 225; Baggett v. Beard, 43 Miss. 120; Alexander et al. v. Woods et al., 75 So. 772, 115 Miss. 164; Johnson v. Howard, 141 So. 573, 167 Miss. 475.

The appellants did not see fit to proceed under the method set up by the Public Works Administration, whereby a contractor was given the opportunity to place his complaints before the Public Works Administration in reference to any contract or controversy, but the appellant, without notice to the city, sought to tie the hands of the city and to jeopardize the city's interest by obtaining an injunction.

It has been adjudicated in this case that appellant committed an error in so doing. Consequently, in our jurisprudence, the bond given must respond for the damage suffered.

Campbell et al. v. Stauffer et al., 166 Miss. 304, 146 So. 873.

It is permissible for a municipality to obtain the special services of an attorney and pay therefor even though it has to be a regularly retained attorney.

Vicksburg Water Works Co. et al. v. Mayor and Aldermen of City of Vicksburg, 54 So. 852, 99 Miss. 132; Gwin et al. v. City of Greenwood, 131 So. 821, 159 Miss. 110.

The mayor of the City of Natchez was authorized, in the various resolutions introduced in the case, in his discretion to do any and all things which he might deem necessary for the carrying out of the Bridge Project.

The allowance of the item of attorney fees should be made to the City of Natchez so that it will not be penalized by the wrongful act of the appellant in having sued out without notice, the injunction and thereby having required the city to employ special counsel to get rid of same.

N. O. R. Co. v. Martin, 105 Miss. 232, 62 So. 228.

OPINION

McGehee, J.

This appeal is from a final decree of the Chancery Court of Adams County declining to permit the appellant to dismiss without prejudice or penalty its bill of complaint in said court upon payment of the costs, but which decree dismissed the bill with prejudice and awarded unto the appellee the sum of $ 750 as attorney's fee on account of the suing out of a temporary injunction.

On March 16, 1939, the appellant, Edward E. Morgan Company, Inc., filed its bill of complaint in the said chancery court to obtain an injunction against the appellee, City of Natchez, to prevent the awarding of a contract to the Harrison Engineering & Construction Corporation, Kansas City, Missouri, for certain excavation work to be done on the approaches in connection with the construction of a bridge across the Mississippi River at Natchez, Mississippi, upon the ground that the appellant was the lowest and best bidder for the work when the bids therefor were opened and considered. Appellant also sought to obtain an adjudication that it was the lowest and best bidder, and to compel the appellee to recognize its rights as such in awarding the contract. The bid of the said Harrison Engineering & Construction Corporation had been accepted by the appellee, subject to the approval of the Public Works Administration from which a grant of 45% of the funds with which to construct the said bridge and approaches was being obtained, and also subject to the approval of the Reconstruction Finance Corporation from which a loan of 55% of the necessary funds was being received for that purpose.

Upon the filing of the bill of complaint, an application was made to a judge of the State Supreme Court for the issuance of a preliminary writ of injunction as prayed for therein. Thereupon, the judge required that notice be given the city authorities of a hearing to be had before him, in Chambers, at ten o'clock A. M., on March 21, 1939, on the application for the preliminary injunction. In the meantime, the appellant obtained what was designated as a "restraining order" to be issued forthwith by the clerk of the chancery court of Adams County, upon the filing of a surety bond, conditioned as required by law in the penal sum of $ 5000, restraining the appellee, its officials and representatives, from awarding, executing, or permitting to be executed the contract in question until further hearing of the application for the preliminary injunction at the time and place stated. An injunction bond in due form was thereupon executed by the appellant, Edward E. Morgan Company, Inc., as principal, and the United States Fidelity & Guaranty Company, as its surety, conditioned for the payment of "all damages and costs which may be awarded against it, or which the City of Natchez may suffer or sustain by reason of the suing out of said injunction, in case the same shall be dissolved." The writ issued by the clerk, pursuant to the fiat of the judge and the execution of the bond, recited among other things that the appellee was accordingly restrained, until the hearing of the application of the...