Joplin Gas Company v. City of Joplin

• Decision Date: 16 June 1914
• Parties: JOPLIN GAS COMPANY, Appellant, v. CITY OF JOPLIN, Respondent
• Court: Missouri Court of Appeals

167 S.W. 660

182 Mo.App. 422

JOPLIN GAS COMPANY, Appellant, v. CITY OF JOPLIN, Respondent

Court of Appeals of Missouri, Springfield

June 16, 1914

Appeal from Jasper County Circuit Court, Division No. One.--Hon. J D. Perkins, Judge.

REVERSED AND REMANDED.

Case reversed and remanded.

Spencer Grayston & Spencer for appellant.

(1) Where services of counsel are not exclusively required to obtain dissolution of injunction but are necessarily rendered upon another branch of the case and the injunction is permitted to stand until final disposition of the case, such expenses are not recoverable, as damages, on the injunction bond. Wilson v. Haecher, 85 Ill. 349; Blair v Reading, 99 Ill. 600; Moriarty v. Galt, 125 Ill. 417, 17 N.E. 714; 16 L.R.A. (N. S.) 64 note; 33 L.R.A (N. S.) 844, Supplemental Note; Alaska Improvement Co. v. Hirsch, 119 Cal. 249, 47 P. 124, 51 P. 340; Collins v. Huffman, 48 Wash. 184, 43 P. 220. (2) To justify allowance of attorney fees in case where injunction is ancillary it must appear that counsel made all reasonable and proper efforts to obtain the dissolution of the injunction and had failed, so that the trial of the action was necessary to get rid of the preliminary injunction. Youngs v. McDonald, 56 A.D. 14, 67 N.Y.S. 375, 378-379. Affirmed in 166 N.Y. 639, 60 N.E. 1123; Lee Lumber Co. v. Hotard, 122 La. 850, 48 So. 286, 129 Am. St. Rep. 372. (3) Where counsel fees and personal expenses are sought to be recovered as damages on injunction bond, it is encumbent on the party seeking to recover same to show: 1. That injunction was the sole relief to which the suit pertained; or, 2. That the fees and expenses were paid out solely for the purpose of procuring a dissolution of the injunction as distinguished from expenditures for the hearing of the principal issues involved in the case. State ex rel. Tully v. Taylor (W. Va.), 68 S.E. 379. (4) The injunction was ancillary to the main issue in this case. The prayer for injunction and the allegations specially pertaining to that feature could be stricken out of the petition and there would still be left a case calling for a determination of the reasonableness of the rate and the validity of the ordinances. Railroad v. Whitney, 143 Ia. 506, 121 N.W. 1044; R. S. 1909, Sec. 9569; Brown v. Baldwin, 121 Mo. 126; Banking Co. v. Monarch Co., 68 Mo.App. 603; Hammerslough v. Loan & Saving's Assn., 79 Mo. 80. (5) Where the testimony gives no data by which the appellate court can safely and certainly estimate allowable fees and separate them from the erroneous mass, the case must be remanded. Commission Co. v. Spencer, 236 Mo. 608; 29 Am. & Eng. Anno. Cases 923, Note.

R. A. Pearson and C. H. Montgomery for respondent.

(1) Decisions of other States under different statutes have no force against decisions of appellate courts of this State. Commission Co. v. Spencer, 236 Mo. 630. (2) The court made no allowance for anything except services rendered in defeating the injunction. A defendant has a right to have his motion to dissolve first passed upon separate from the case on the merits, and is entitled to an appeal from that decision. State ex rel. v. Smith, 188 Mo. 173. (3) Even if payment had not been made, the result would have been the same. The city accepted the benefit of the services of the attorney and experts and was therefore estopped to deny the bill. Also ratified the contracts by passing an ordinance and issuing warrants to pay the same. Edwards v. Kirkwood, 147 Mo.App. 600; Union Depot Co. v. St. Louis, 76 Mo. 395; Railroad v. Marion Co., 36 Mo. 295; 2 Smith on Modern Law Munic. Corp., Sec. 1670, p. 1756; State v. Dent, 18 Mo. 313; Simpson v. Stoddard, 173 Mo. 465. (4) Even though the motion to dissolve and the case on the merits were tried together still the action of the court was without error. A dissolution of the injunction involved a trial of the whole case, and the allowance was proper. Hammerslough v. Building Assn., 79 Mo. 81; Holloway v. Holloway, 103 Mo. 285; Alliance Trust Co. v. Stewart, 115 Mo. 245; Akin v. Rice, 137 Mo.App. 155; Brownlee v. Fenwick, 103 Mo. 430.

STURGIS, J. Robertson, P. J., concurs. Farrington, J., concurs.

OPINION

STURGIS, J.--

This is a proceeding under section 2524, Revised Statutes 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, Revised Statutes 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 time 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 ...