Howell v. McLeod

• Decision Date: 14 November 1921
• Docket Number: 22010
• Citation: 89 So. 774,127 Miss. 1
• Court: Mississippi Supreme Court
• Parties: HOWELL et al. v. MCLEOD

89 So. 774

127 Miss. 1

HOWELL et al. v. MCLEOD

No. 22010

Supreme Court of Mississippi

November 14, 1921

INJUNCTION. Attorney's fees not allowed where dissolution of injunction not sought until trial on merits.

Where a bill is filed and an injunction issued and no effort is made to dissolve the injunction until the trial on the merits attorney's fees to the defendant cannot be allowed unless the relief sought was limited to injunction, or the whole relief was dependent upon the retaining the injunction.

HON. V A. GRIFFITH, Chancellor.

APPEAL from chancery court of George county, HON. V. A. GRIFFITH Chancellor.

Suit by W. W. Howell, as administrator of the estate of Thomas Howell, deceased, and others, against R. D. McLeod. Decree for the defendants, and the plaintiff appeals, and defendant brings cross-appeal. Reversed in part and affirmed in part on direct appeal, and affirmed on cross-appeal.

Judgment reversed in part and affirmed in part on direct appeal; affirmed on cross-appeal.

O. F. Moss, for appellants.

There was no effort made to dissolve this injunction in vacation but there was an agreement to try the cause on its merits, and no motion was made to dissolve the injunction until the cause came for hearing on its merits. Judge DENNY went to Wilmer to take testimony to be used on the final hearing of this cause. The main object of this suit was to cancel McLeod's timber contract and the injunction asked for and obtained was a mere incident thereto.

The case of Mims v. Swindle, 87 So. 151, and the authorities there cited are against appellee as to the allowance of attorney's fee in this case, and shows conclusively that the lower court erred in allowing appellee's attorney two hundred and fifty dollars for dissolving the injunction, which was not dissolved until the cause came on for hearing on its merits.

We neither admit nor deny in this brief whether said two hundred and fifty dollars allowed as attorney's fee has been paid or not, but we submit that this cannot be raised by counsel in their briefs, and if they will plead payment of this, we will promptly demur to said plea.

It makes no difference whether the judgment is paid or not, since the judgment may be reversed notwithstanding payment or satisfaction, and the amount paid recovered. Gordon v. Gillis, 3 S. & M. 473.

Appellee showed no damages on the trial of this cause, unless he can be allowed attorney's fee for the dissolution of the injunction, and there is absolutely nothing in the cross-appeal. He had no binding contracts at the time he shut down the mill on which he could realize. He admits himself that he could not have run longer profitably on account of the low price of lumber.

Wells, Stevens & Jones, for appellee.

The allowance of an attorney's fee in this case was proper. The chancellor in dissolving the injunction allowed Judge DENNY the small fee of two hundred and fifty dollars for representing the defendant. Counsel for appellants, on page two of his brief, makes the following statement: "A preliminary injunction was prayed for and obtained but no motion or effort was made to dissolve said injunction until the cause came on for final hearing on its merits."

This statement is not altogether correct. On page 33 of the record is a motion to dissolve the injunction filed August 31, 1920. Soon after the bill of complaint was filed and attached to this motion is a written suggestion of damages to which counsel for appellants responded in writing. There was an agreement to hear this motion to dissolve September 3, 1920, in vacation of the court, and in preparation for this trial, Judge DENNY went to large expense and the motion was not presented, simply because counsel for appellants was not ready. The purpose of an injunction bond is to take care of the damages that naturally and necessarily follow the wrongful suing out of the writ. It cannot be successfully denied that the wrongful suing out of the injunction in this case put Mr. McLeod to extraordinary expense and that this counsel went to extra expense in trying to have the injunction dissolved in vacation. There was at least an honest effort to dissolve in vacation. The chancellor had a right to take all these facts into consideration when he came to adjust all the right of the parties on final hearing. Our contention therefore is that the chancellor had a right to award an attorney's fees in this case even though the motion to dissolve was not heard until final hearing and was then heard and disposed of. The dissolution related to the time the motion was filed and the chancellor had a right to consider the extra expense and the fact that the attorney for the defendant was justified in charging a larger fee because of the trouble and expense he had been put to in vacation in trying to get a hearing which he was entitled to and in trying to get a decree in vacation which the court finds he was entitled to. Equity is with the appellee on this point. In the testimony could be found some questions propounded by counsel on both sides in reference to this effort to dissolve this injunction on September 3rd.

But aside from the fact that the motion to dissolve the injunction was filed in vacation but not heard until the cause was disposed of on its merits, our contention is that this is a proper case for the allowance of an attorney's fee even on final hearing. The court must look at the situation of the parties and the object to be accomplished by the bill. McLeod had a contract to cut and pay for the timber by the month and was gradually taking the timber off the land. The object of the bill primarily was to stop him from cutting the timber. If you strike out of the bill, the prayer for an injunction, then the complainants would have no kind of case. It would be useless to litigate questions of mental weakness or undue influence when the timber is all gone. There would be nothing to litigate over unless appellee should be restrained from cutting the timber. This is a case where an injunction was the main relief prayed for and the only grounds of the bill were advanced in support of the injunction.

Counsel relies upon the recent case of Mims v. Swindle, 87 So. 151, decided by Division A. But the Mims case is easily differentiated from the case at bar. In the Mimms case there was a cross-bill and the main issue between the parties arose on the cross-bill. The defendant in that case did not rely upon defensive tactics but elected to adopt the chancery court as to forum for bringing forward his affirmative relief by way of cross-bill and having done so the court held that he should pay his own counsel.

In Jamison et al. v. Dulaney, 74 Miss. 890, the headnote reads: "Where a suit in equity is alone for injunction and its insurance is preliminarily obtained, and it is afterwards dissolved, the complainant being cast in the suit, the defendant is entitled to recover attorney's fee...