Koehring Co. v. Hyde Const. Co.
| Decision Date | 18 May 1970 |
| Docket Number | No. 45752,45752 |
| Citation | 236 So.2d 377 |
| Parties | KOEHRING COMPANY and Fidelity & Deposit Co. of Maryland, Appellants, v. HYDE CONSTRUCTION CO., Inc., Tom Virden, Receiver, Vardaman S. Dunn, CharlesClark & William H. Cox, Jr., d/b/a Cox, Dunn & Clark and United States Fidelity& Guaranty Co., Appellees. |
| Court | Mississippi Supreme Court |
Tennyson & Britt, Jackson, for appellants.
Snow, Covington, Temple & Watts, Meridian, Butler, Snow, O'mara, Stevens & Cannada, Cox & Dunn, Watkins & Eager, William E. Suddath, Jr., Jackson, for appellees.
This is an appeal originated by Koehring Company and Fidelity & Deposit Company of Maryland, hereinafter refered to as Koehring, from a decree of the Chancery Court of the First Judicial District of Hinds County. The United States Fidelity & Guaranty Company, hereinafter referred to as U.S.F. & G., is a cross-appellant from the decree, thereby designating appellees as Hyde Construction Company, Inc., Tom Virden, receiver, and Cox, Dunn & Clark, attorneys at law, hereinafter referred to as dunn.
The controversy stems from the aggrievement of Koehring over the appointment
of Tom Virden, the Chancery Clerk of Hinds County, as receiver, with the designated responsibility of accepting from it, as judgment debtor, payment of the judgment. The aggrievement of U.S.F. & G., a judgment creditor by assignment, is that the lower court erred in allowing an excessive and exorbitant attorneys' fee to Dunn, who represented Hyde Construction Company, and procured the original judgment against Koehring on April 8, 1964. That judgment was later appealed to this Court and was modified with the result being the amount of $406,396.89, with interest at 6% per annum from April 8, 1964, until payment. The decree of June 18, 1969, from which the present appeal is taken, comprised the sum of $533,047.90, the aggregate of the original judgment plus interest to the date of the later decree. The adjudicatory portion of the decree following the court's finding relating to parties and jurisdictional features is:
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
1. That the claim of Vardaman S. Dunn, Charles Clark and William H. Cox, Jr., d/b/a Cox, Dunn & Clark, be and the same is hereby allowed as a first lien and claim upon the said judgment and upon the proceeds thereof, superior and paramount to the claims of all other parties, to be paid and secured first out of the proceeds resulting from said judgment, in the following amounts:
(a) A sum equal to 50% of the gross proceeds of the said judgment, including accumulated interest to the date of its payment, or the sum of $300,000.00, whichever sum is the greater, plus interest at the rate of 6% per annum on whichever sum be payable, calculated from the date of this decree to the date of distribution; plus
(b) Expenses incurred or paid in the amount of $43,237.61 plus interest at the rate of 6% per annum from and after the date of this decree; and
2. That the claimant United States Fidelity & Guaranty Company receive the balance of the proceeds of said judgment after first deducting the fee and expenses allowed to said attorneys and after deducting any other cost or expense items hereafter accruing and allowed by a Court of competent jurisdiction as and for a proper charge against said proceeds; and
3. That all claims and potential claims against the said judgment and the proceeds thereof by all other parties be and the same are hereby rejected and dismissed with prejudice; and
4. That upon payment of the amount of said judgment plus accrued interest into the registry of this Court or into the hands of Tom Virden, the Receiver appointed by this Court to receive the same, or upon collection of the proceeds of said judgment by this Court's Receiver, the Koehring Company and its surety, the Fidelity & Deposit Company of Maryland, judgment debtors, their successors and assigns, shall be thereby automatically and fully discharged from the judgment debt and from any and all further liability upon or under said judgment and from the claims of all parties to the proceeds thereof, all without any responsibility on the part of the said judgment debtors, or either of them, for the distribution or disposition of said proceeds after such payment or collection; and
5. That Tom Virden, Receiver, be and he is hereby directed to receive and collect the proceeds of such judgment whenever he shall cease to be prohibited from so doing on account of any injunctive order of any Court of competent jurisdiction, and to strictly account to this Court therefor, and to disburse the same pursuant to this and the further orders, if any, of this Court, not inconsistent herewith, and to take receipts for such 6. That the Receiver take no action hereunder toward the collection or enforcement of said judgment pending dissolution of the injunction issued by the United States District Court for the Eastern District of Wisconsin pending appeal as modified by order of the United States Court of Appeals for the Seventh Circuit in Cause No. 17502-3-4, but that the Receiver be and he is hereby authorized to cause true copies of this decree to be duly certified and authenticated under the Acts of the United States Congress and said copies to be filed with the said United States District Court for the Eastern District of Wisconsin in Civil Action No. 68-CO144 and the United States Court of Appeals for the Seventh Circuit in Appellate Cause No. 17502-3-4.
disbursements and to execute appropriate satisfactions of the said judgment; and
SO ORDERED, ADJUDGED AND DECREED on this the 18th day of June, 1969.
/s/ J. C. Stennett
The injunctive impediment in Paragraph 6 immediately above was removed by dissolution of the injunction on order of the United States Court of Appeals for the Seventh Circuit on March 19, 1970. 424 F.2d 1200. On March 25, 1970, Tom Virden, the receiver, was handed a cashier's check by Koehring, the judgment debtor, in the sum of $551,914.60 in payment of its judgment debt. Thereafter, on March 30, 1970, Koehring filed a motion to dismiss its appeal from the receivership decree alleging it to be moot, whereupon, the receiver moved for statutory damages pursuant to Mississippi Code 1942 Annotated section 1971 (1956), though he did not contest the motion to dismiss.
The primary issue raised by Koehring on the direct appeal, which questioned the validity of the appointment of the receiver, is removed from our present consideration since we sustain Koehring's motion to dismiss the appeal. The issues remaining are with regard to an award of the statutory penalty of 5% upon dismissal of the appeal and the question of the attorneys' fees.
Reference to Paragraph 1, subparagraphs (a) and (b), and Paragraph 2 of the chancery decree above indicates that it establishes priority of claims and directs payment thereof though the payment was subject to the prohibition by injunction of the federal court. The federal court, while giving consideration to an interpleader action brought by the appellants relating to the same judgment, granted dispensation to the state court for a hearing on the receivership petition which authorized an adjudication of all issues short of actual enforcement of the judgment. The receiver bases his contentions for statutory damages on Mississippi Code 1942 Annotated section 1971 (1956) which provides:
In case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect the Supreme Court shall render judgment against the appellant for damages, at the rate of five per centum and costs, as follwos: If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum. If the judgment or decree be for the possession of real or personal property, the damages shall be assessed on the value of the property; if the judgment or decree be for the dissolution of an injunction or other restraining process at law or in chancery, the damages shall be computed on the amount due the appellee which was enjoined or restrained * * *
Koehring now contends that the provisions of this statute are not applicable to this appeal since the only assignment of error was: 'The court below erred in entering its decree adjudicating claims to proceeds of judgment on June 18, 1969 * * *' and for this reason the decree does not fall within the ambit of the statute, and accordingly, no damages should be taxed for the unsuccessful appeal. In support of this position it cites the case of Clark v. German Security Bank, 61 Miss. 614 (1884) where the held that the forerunner of the present statute limited the damages to be awarded against an unsuccessful appellant to the categories enumerated in the statute: '-first, where the judgment or decree of the lower court is for a sum of money; second, where the judgment or decree is for the possession of real or personal property, and third, where the judgment or decree is for dissolution of an injunction or other restraining process at law or in chancery. * * *' (60 Miss. at 617). The opinion concludes with the statement that statutory damages are not to be awarded in any case other than those enumerated. This theme is continued in Redd v. Thompson, 56 Miss. 230 (1978) where it is stated in the opening sentence of the opinion as follows: 'It is only by virtue of statutory provisions that this court can render judgment for damages against an appellant.' Also, in Vicksburg Bank v. Adams, 74 Miss. 179, 196, 21 So. 401, 402-403 (1897): '* * * and damages can only be awarded in the cases expressly provided for by the statute.' In the later case the court concluded that a judgment which levied an assessment on a bank for taxes was not within contemplation of the statute.
Having in mind the categories for which statutory damages might be awarded and also aware that in Canal Bank & Trust Company v....
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