Gallup v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 14 May 1923
• Docket Number: 379
• Citation: 251 S.W. 30,158 Ark. 624
• Parties: GALLUP v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

251 S.W. 30

158 Ark. 624

GALLUP v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

No. 379

Supreme Court of Arkansas

May 14, 1923

Appeal from Baxter Chancery Court; Lyman F. Reeder, Chancellor affirmed.

Decree affirmed.

Allyn Smith, for appellant.

The court erred in rendering judgment against appellant. During pendency of appeal in U. S. Supreme Court, and while supersedeas bond sued on was in effect, the railway became involved, and appellant should be allowed to recover amount of his judgment against the bond. 58 So. 792; 56 So. 849.

McConnell & Henderson, for appellees.

The record does not contain all the evidence introduced at the trial, and case should be affirmed. 33 Ark. 119; 147 Ark 197. Injunction not revived by taking an appeal from order modifying it. Case was decided by Supreme Court June 4, 1917 244 U.S. 368, 37 S.Ct. 611. Appellant had the right, at any time after the case was decided by the Circuit Court of Appeals in March, 1915 (220 F. 876), to prosecute his case in Baxter Chancery Court. He took no appeal from that decision. 84 Ark. 494; 84 Ark. 596; 219 U.S. 527, 31 S.Ct. 295; 132 U.S. 14, 10 S.Ct. 8; 115 U.S. 465, 6 S.Ct. 127; 251 U.S. 511 40 S.Ct. 285. Liability of surety strictly construed. 203 U.S. 441, 27 S.Ct. 56. No damage resulted to appellant from the appeal to the U. S. Supreme Court, and there can be no recovery against the bond. Cases cited by appellant have no application to facts herein. Attorney's fees are not allowed as damages in dissolution of injunction. 366 Ark. 191. Not recoverable as damages. 77 Ark. 128.

OPINION

HART, J.

This is a suit in chancery by appellants against appellees to recover upon an appeal bond filed in the Circuit Court of Appeals of the Eighth Circuit, in the case of Bellamy v. St. Louis, I. M. & Southern Railway Company, reported in 220 F. 876. In that case the Federal district court had granted a perpetual injunction against Howard H. Gallup and other defendants, including the Railroad Commissioners of the State of Arkansas, from maintaining any suits for excess freight and passenger charges against the St. Louis, Iron Mountain & Southern Railway Company during the pendency of the injunction. The Circuit Court of Appeals held that parties from whom excessive rates had been exacted were not confined to suing on the injunction bonds, but that they had the right given them by law to recover the overcharges, and that the right was not destroyed by the injunction, but was only suspended. Hence the order of the trial court was modified accordingly. In short, it was held that the shippers might recover the overcharges by separate suits under the statute.

The railroad company prosecuted an appeal to the Supreme Court of the United States and filed an appeal bond conditioned as follows: "Now, therefore, the condition of this obligation is such that if the above named appellant shall prosecute its appeal to effect and answer all costs and damages that may be adjudged against it, if it shall fail to make good its plea, then this obligation is to be void otherwise to remain in full force and effect."

This bond was signed by the Fidelity & Deposit Company of Maryland. Upon appeal to the Supreme Court of the United States the judgment of the Circuit Court of Appeals was affirmed. St. Louis, I. M. & S. R. Co. v. McKnight, 244 U.S. 368, 61 L.Ed. 1200, 37 S.Ct. 611. The court held: "Where a carrier, by reason of temporary and permanent injunctions against State officials and shippers and travelers as a class, collects rates in excess of those fixed by law, the right of a person who did not appear to sue for the excess paid by him during the restraint revives when the final decree is reversed by this court and its mandate is issued to dismiss the bill."

The court said that Gallup sued on causes of action to recover overcharges arising under the Arkansas statute, and that his right to sue, suspended by the injunctions improvidently granted, revived as soon as the permanent injunction was dissolved by the decree dismissing the appeal. The opinion of the Circuit Court of Appeals was delivered on March 8, 1915, and the decision of the Supreme Court of the United States was on June 4, 1917.

The St Louis, Iron Mountain & Southern...