Livingston v. Exum
| Decision Date | 19 April 1883 |
| Citation | 19 S.C. 223 |
| Parties | LIVINGSTON v. EXUM. |
| Court | South Carolina Supreme Court |
OPINION TEXT STARTS HERE
1. A plaintiff having failed in his action for damages for trespass, alleged to have been committed by defendants on his lands, under subsequent proceedings to ascertain the damages to which the defendants were entitled under the injunction bond given by the plaintiff, he cannot raise the question of his title to such lands.
2. L. obtained a preliminary injunction to restrain P. and E. from getting crude turpentine on lands which he claimed, and gave an injunction bond; final judgment was rendered for defendants and the injunction was dissolved. E. was not engaged in getting crude turpentine, but P. was, and was under contract to furnish to E. for distillation all that he (P.) got. Held, that the loss to P. was sustained by reason of the injunction, but that the loss to E. was not the natural and proximate effect of the injunction, and, therefore, could not be recovered by him as damages. But the counsel fee paid by E. for procuring a dissolution of the injunction was properly recoverable under plaintiff's bond.
3. Counsel fees allowed by the master, assumed, in the absence of a contrary statement in the brief, to have been incurred by defendants in having the injunction dissolved; and such fees may be allowed as damages, recoverable under the injunction bond.
4. Parties failing to perfect their appeal taken from an order refusing to refer to the master their claim for damages under an injunction bond, are not entitled to a hearing of their appeal by this court when the cause is subsequently brought up by other appellants.
Before MACKEY, J., Orangeburg, January, 1881.
Action by John H. Livingston against the defendants named in the opinion of this court. The opinion fully states the case.Messrs. M. I. Browning and S. Dibble, for appellants.
Messrs. A. Lathrop and J. F. Izlar, contra.
The opinion of the court was delivered by
The plaintiff, respondent, claiming to be seized and possessed of certain lands situate in Orangeburg county, brought the action below to recover damages for an alleged trespass by defendants in cutting, hacking and boxing the pine trees growing thereon for crude turpentine, which gave the land its principal value. An injunction was obtained at the beginning of the action, restraining the defendants from further trespass, upon the plaintiff giving an injunction bond in the sum of $500. Before the trial the amount of this bond was enlarged by order from Judge Fraser.
At the trial, which took place at the January Term, 1880, of the Court of Common Pleas for Orangeburg county, upon the close of the plaintiff's testimony the presiding judge granted a non-suit as to the defendant Kennedy, and it appearing from the evidence that there was no community of acts between the other defendants, Phillips and Davis, the plaintiff was required to elect which he would proceed against. He elected to proceed against Phillips and Exum, whereupon the complaint was dismissed as to Davis and the trial was had against these two defendants, in whose favor the jury rendered a verdict.
At the time the action below was commenced the defendant Phillips was engaged in getting crude turpentine from the trees upon the land in dispute, and he was under contract to furnish defendants Exum and Kennedy, who were running a turpentine still near by, all such crude material as he could make during the year from February, 1879, to March, 1880. The plaintiff was also running a still in the neighborhood.
The verdict having been rendered for the defendants, Exum and Phillips, judgment was ordered in accordance therewith. The injunction was vacated and set aside and an order was passed referring the matter to Thomas W. Glover, Esq., the master, to ascertain the damages to these defendants by reason of the injunction. The defendants Kennedy and Davis moved at the same time for a similar order as to their damages. This was refused on the ground that the decision in their cases was not on the merits, a non-suit having been granted as to one and the case dismissed as to the other because the plaintiff had elected not to proceed against him. These defendants excepted and gave notice of appeal, but, as it seems, took no further steps to perfect their appeal except that their names are embraced in this appeal of the other defendants taken as to subsequent matters hereinafter.
The master reported as to the damages of Phillips and Exum, to wit: as to Phillips, the sum of $976. This estimate was based upon the quantity and value of the crude turpentine collected by Phillips, and which the plaintiff, after obtaining the injunction, appropriated to his own use. It also included a fee of $75 to his counsel. Exum claimed damages on account of the fact that Phillips had failed, by reason of the injunction, to furnish his distillery with the crude turpentine agreed upon, and also a fee of $65 paid to his counsel. The master allowed the fee but reported against the claim as to the other damage, because, in his opinion, this was too remote and uncertain, resting entirely upon the question of net profits which Exum might have made had Phillips furnished the crude material which the master thought was speculative, uncertain and dependent upon various contingencies impossible to be determined with any certainty. The master declined to consider the question of title to the premises set up by the plaintiff and made no report in reference thereto.
To this report both plaintiff and the defendants excepted. The exceptions of plaintiff are: 1. Because the master failed to allow to him certain items connected with collecting the crude turpentine after he took possession under the injunction. 2. Because the counsel fee was allowed. And 3. Because the master did not report that plaintiff, at the time the injunction was granted, was the owner in fee of the premises. Exum excepted: Because his claim for damages as to the profits was rejected; and Phillips, Because certain other items were not included in the damages reported for him.
The report of the master, with these exceptions, was heard by Judge Mackey at the January Term of the court, 1881, the attorneys having stipulated with each other that, if the report of the master as to Phillips should be affirmed, the damages should be set down at $757; and if Exum should be allowed damages because of profits lost by him, the amount should be $661.84; and, further, if the court should consider the question of title as a matter of defense to the damages, that then the report should be recommitted so as to give Exum and Phillips an opportunity of being heard before the master on that subject with their evidence. These stipulations were brought to the attention of the judge in connection with the report of the master.
Judge Mackey filed his decree in April, 1881, in which he held: First. That at the time and before the injunction, and during the whole time it was of force, the plaintiff was the owner in fee of all the lands and premises mentioned in said injunction. And second. That the defendants, Exum and Phillips, had sustained no damages by reason of the granting and continuance of said...
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