Joplin Gas Co. v. City of Joplin

• Decision Date: 02 June 1914
• Docket Number: No. 1205.,1205.
• Citation: 167 S.W. 660,182 Mo. App. 422
• Parties: JOPLIN GAS CO. v. CITY OF JOPLIN.
• Court: Missouri Court of Appeals

167 S.W. 660

182 Mo. A. 422

JOPLIN GAS CO. v. CITY OF JOPLIN.

No. 1205.

Springfield Court of Appeals. Missouri.

June 2, 1914.

Rehearing Denied June 16, 1914.

1. INJUNCTION (§ 186)—DISSOLUTION—DAMAGES.

Counsel fees should not be allowed as damages where a temporary injunction is dissolved, if the fees were incurred in defending the action generally, and the dissolution of the injunction was only incidental, although the converse is true where the merits of the case are only incidental to the dissolution of the injunction.

2. INJUNCTION (§ 186)—DISSOLUTION—DAMAGES.

Where an injunction is only ancillary to the main case, and there is a separate trial on the motion to dissolve, evidence may be introduced and costs incurred, which are also pertinent to the merits of the case; but that is no objection to the allowance of the same as damages for procuring the dissolution of the injunction.

3. INJUNCTION (§ 186)—TEMPORARY INJUNCTION—HEARING.

Where a temporary injunction is granted, the court may refuse to grant a separate hearing on the motion to dissolve, and may combine the hearing on the motion with the hearing on the merits; but the action of the court in hearing the two together does not make the trial so essentially a trial on the merits as to prevent any expenses of the trial being assessed as damages in procuring the dissolution of the injunction.

4. INJUNCTION (§ 186)—TEMPORARY INJUNCTION —DISSOLUTION—DAMAGES.

In an action to test the validity of an ordinance fixing the rate which plaintiff might charge for supplying gas, where a temporary injunction was granted, and the court heard the motion to dissolve the injunction at the hearing on the merits, the trial was not a separate trial on the motion to dissolve, with the merits purely incidental, but was a combination of the two, and there should be a division of the expenses in order to ascertain the costs allowed as damages in procuring the dissolution.

5. INJUNCTION (§ 186)—DISSOLUTION—COSTS.

The fact that it is difficult to divide the expenses where a motion to dissolve a temporary injunction was heard at the hearing on the merits will not authorize the successful defendant to charge all the costs expended as expenses in procuring a dissolution of the injunction.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by the Joplin Gas Company against the City of Joplin, in which a temporary restraining order was granted. There was a judgment for defendant, and it moved to assess damages on the injunction bond. From the assessment of damages, plaintiff appeals. Reversed and remanded.

Spencer, Grayston & Spencer, of Joplin, for appellant. R. A. Pearson and C. H. Montgomery, both of Joplin, for respondent.

STURGIS, J.

This is a proceeding under section 2524, R. S. 1909, to assess damages on an injunction bond wherein defendant prevailed, and plaintiff has appealed. The original action, wherein a temporary restraining order was granted, was brought under section 9569, R. S. 1909, authorizing persons and corporations, feeling themselves aggrieved, to bring an action to test the validity of ordinances enacted by cities fixing the rates to be charged by public service corporations or other owners operating public utilities under franchises or otherwise, including those supplying the inhabitants of cities with gas, electricity, heat, or power, and to determine the reasonableness of the rates so fixed. The plaintiff is a distributing corporation only, receiving the natural gas furnished to its patrons from another corporation having pipe line connection with the distant gas fields and wells constituting the source of supply. The burden of plaintiff's complaint in the original suit is that the ordinance in question, enacted by the city of Joplin, required it to furnish natural gas to the consumers at a less rate than was possible for it to purchase same from any company bringing gas to or near Joplin from the source of supply. The original suit is primarily one to determine the validity of the ordinance fixing rates and the reasonableness of such rates, and, when first filed, no temporary restraining order was asked or granted. Some later the city of Joplin was proceeding to enforce the ordinance rates, without waiting for a decision of the court and plaintiff asked for, gave bond, and a temporary restraining order was granted. The defendant filed an answer and a motion to dissolve the injunction on the following grounds:

"(1) There is no equity on the face of the bill filed by complainant herein. (2) All the material allegations of said bill are denied under oath by the defendant in its answer. (3) That it clearly appears by said bill and answer that the said plaintiff has no franchise, license, or authority of any kind whatsoever to vend or furnish natural gas in said city, and the granting of an injunction to plaintiff under such circumstances in this action would in effect be granting plaintiff a franchise to use defendant's streets, without limiting such use by proper regulations, and would be the granting of an unlimited franchise by judicial legislation—a thing which this court has no power to do. (4) That this is a special statutory proceeding, and that the granting of an injunction is not a part of the remedy allowed or contemplated by such statute."

It will be seen that this motion to dissolve raises issues of both law and fact.

After consultation with the attorneys for the respective parties, the court set the case for hearing on a day certain. When the case was called for hearing, a controversy arose as to whether the case had been set, with the attorneys' consent, for hearing on the motion to dissolve only or on the whole case. Mr. Montgomery, the special counsel for the defendant, was insisting that only the motion to dissolve was for hearing, and, when asked by the court if that would dispose of the whole matter, replied:

"No; that is ancillary to this proceeding. The case itself, as I understand it, is not set down for trial; it is simply the motion to dissolve we are trying now."

And the court replied:

"I don't want to try it twice."

There was some further discussion of this matter, and especially as to the effect which a ruling, expected to be soon made by Judge Pollock in the federal court in Kansas, as to rates to be charged by the company from which the plaintiff was getting its supply of gas, might have, and the importance of having such expected decision in evidence when made. The court then ruled:

"As far as the court is concerned, I am ready to hear this whole case and get rid of it. I don't know that I will decide it now. When you get through with it, there may be questions about what orders will be made hereafter in the federal court or the state court in Kansas with reference to the price the Kansas Natural Gas Company shall charge. Those things you may not be ready to prove now; they may have to wait. Anything else I want to get through with, all the other testimony at least.

"Mr. Spencer: The court is trying the case and the motion to-day, I believe.

"The Court: Yes, sir; the case and the motion together. That is the usual practice, and I think the proper practice. I will hear all the testimony you have now; that is, all you have to offer. The court will hear it. Later, so far as the court is concerned, the court will dispose of it. Get in what testimony you have, and, if you have to wait for other, that will come in later."

This was at the January term, 1913, and the evidence was heard early in March of that year, consuming several days. At the close of this evidence, the question of hearing further evidence and arguments came up, and the defendant urged that the case be not finally disposed of until after Judge Pollock made his orders in the federal court, and the whole matter was continued to the April term under this ruling by the court:

"I will not leave it open except this: If either party at the April term of court wants to introduce further testimony, and makes a request, of course the court has the power to grant it, and then the other side will be given notice of what may be expected, and can prepare to get testimony to meet it."

Thereafter, on May 31, 1913, at the April term of court, the plaintiff dismissed its suit, and a final judgment was entered discharging the defendant, with recovery of costs. The motion to assess damages on the injunction bond, which is the subject-matter of this appeal, was then filed. On the hearing of this motion, the question was again raised as to whether the court had tried the case on the motion to dissolve alone or on the merits, and the court stated his own view of the matter thus:

"That is my recollection about it, that the motion to dissolve and the case was all heard here. If it had not been dismissed, and the court had been called upon to pass on it, the court would have passed on both on the testimony that was introduced. I don't think it was the intention or understanding of the court or the attorneys on either side that we were here trying this case and hearing all that testimony introduced here on the merits, and then that we would later introduce testimony and have another hearing on the motion to dissolve. I think the whole thing was being tried together. I think that was the understanding of all parties concerned."

The defendant proved: That it had paid C. H. Montgomery, as special counsel, for his work in connection with the case the sum of $500, having employed him under the following resolution:

"That, in the effort and actions of the Joplin Gas Company to establish rates for service in excess of those fixed by ordinance, the mayor be authorized to take such measures and institute...