Jamison v. Dulaney

• Decision Date: 26 April 1897
• Citation: 21 So. 972,74 Miss. 890
• Court: Mississippi Supreme Court
• Parties: A. J. JAMISON ET AL. v. J. N. DULANEY ET AL

21 So. 972

74 Miss. 890

A. J. JAMISON ET AL. v. J. N. DULANEY ET AL

Supreme Court of Mississippi

April 26, 1897

March 1897

FROM the chancery court of Chickasaw county, first district HON BAXTER MCFARLAND, Chancellor.

The town of Houston issued $ 4, 000 in bonds for municipal purposes. The appellants enjoined the collection of a small amount of taxes levied on their property to pay these bonds. Their bill for injunction was demurred to and the demurrer sustained, injunction dissolved and $ 40 attorneys' fees awarded against complainants. From this interlocutory decree the complainants prosecuted an appeal. The complainants after disposition of the appeal, filed an amended bill, to which the defendants answered, and, on motion to dissolve the injunction, on pleading and proof, the injunction was dissolved. An appeal was prosecuted from this decree of the court below and it was affirmed. When the mandate, after the second appeal, reached the court below, defendants moved the court to dismiss the suit and award them $ 400 damages for attorneys' fees. From the decree on the motion sustaining the same, this appeal is prosecuted.

Affirmed.

W. G. Orr, for appellant.

The interlocutory decree dissolving the injunction and awarding $ 40 attorneys' fees is res adjudicata. The grant of attorneys' fees appealed from is excessive. The taxes actually enjoined by complainants do not exceed the amount awarded. The decree appealed from is void, because notice of the motion on which it was made was not given the complainants. It is true the litigation settled the validity of the whole issue of the bonds in one sense, but all the taxes were not enjoined.

T. J. Buchanan, Jr., and Wm. S. Bates, for appellees.

The decree is not objectionable because the court allowed damages to appellees on hearing its first motion to vacate the temporary injunction, for, by that act the court did not lose jurisdiction. The question of allowance here, like that of taxing costs against parties as the suit progresses, is within the discretion of the court, and may be exercised by it in the award of damages to appellee. Any other theory would withdraw from the chancery court the power vested in it to grant full and adequate relief in this matter to appellees, on the final determination of appellant's injunction suit.

Where the dissolution is the only relief asked, a reasonable attorney's fee is allowed. Beach on Injunction, sec. 203, p. 212; 81 Mo. p. 81; 103 Mo. p. 284. The appellees would be entitled to fees in resisting the attempt to have the injunction made perpetual, and in resisting efforts to reverse the decree of the lower court.

Argued orally by T. J. Buchanan, Jr., for appellees.

OPINION

WHITFIELD, J.

This is the third appearance of this case in this court. The original bill entitled the complainant to no other relief than injunction, and the validity of the whole issue of bonds was determinable by its result, and the chancellor dissolved the injunction, allowing some $ 40 as attorney's fees. This court, on appeal, affirmed that decree. When the cause was remanded, the complainants asked leave to file an amended bill, substantially identical with...