Riley v. Hardy

• Decision Date: 05 June 1939
• Docket Number: 33742
• Citation: Riley v. Hardy, 185 Miss. 765, 189 So. 514 (Miss. 1939)
• Court: Mississippi Supreme Court
• Parties: RILEY v. HARDY et al

189 So. 514

185 Miss. 765

RILEY v. HARDY et al

No. 33742

Supreme Court of Mississippi, Division B

June 5, 1939

APPEAL from the chancery court of Lawrence county HON. BEN STEVENS Chancellor.

Suit by Jefferson D. Riley against J. C. Hardy and others, wherein plaintiff claimed a landlord's lien on certain cotton and prayed that an injunction issue restraining the holder of negotiable warehouse receipts for the cotton from disposing of the receipts. An injunction without notice was issued. From a decree dissolving the injunction and dismissing the bill, complainant appeals. Affirmed in part and reversed in part.

Affirmed in part and reversed in part.

E. B Patterson and C. E. Gibson, both of Monticello, for appellant.

The first ground raised by the demurrer is that the court had no jurisdiction to grant the injunction upon an ex parte application.

The injunction issued in this case was not a mandatory injunction but a prohibitory injunction.

Griffith's Chancery Practice, sections 444 and 445.

The original bill and the amended bill show clearly that the appellant's cotton had been sold and that negotiable warehouse receipts had been issued and that unless enjoined the warehouse received would be negotiated and sold and the cotton shipped out of the state and beyond the reach of appellant. It is a matter of common knowledge that warehouse receipts are negotiated and sold in the same way as other negotiable instruments and to have delayed the issuance of an injunction prohibiting the appellee from disposing of same would have worked a great injustice and irreparable loss on the appellant, and the same is true with reference to the cotton enjoined, and we, therefore, most respectfully submit that the facts, as alleged, present the case where the Chancellor was warranted in issuing the injunction without notice.

Alexander v. Woods, 60 So. 1017; Pitts v. Carothers, 120 So. 830.

The second, third and fourth grounds of said demurrer state that the original bill and the amended bill show no ground for relief in equity; that the appellant had a plain and complete remedy at law. We are sure that under the pleadings counsel will not seriously urge that there is a merit in these grounds because in our opinion, the original bill and the amended bill clearly state a case for equitable relief.

The fifth ground states that the bill shows that the things sought to be enjoined had already happened. The original bill and the amended bill clearly show that the cotton and negotiable instruments would have been placed beyond the reach of appellant unless enjoined.

The seventh ground is in the nature of a plea of estoppel which cannot be raised by demurrer.

10 R. C. L. 842; McVay v. Castenara, 119 So. 155; 21 R. C. L. 550, 552; Adams v. Y. & M. V. R. Co., 24 So. 200.

All of the necessary parties for an adjudication were not in court.

Griffith's Chancery Practice, sec. 382; Ladner v. Ogden, 31 Miss.332.

We most respectfully submit that the decree rendered in the former case cannot be plead as a defense to this action because it is not a proceeding between the same parties over a matter that had been formerly adjudicated.

34 C. J., sec. 1165; Coleman v. Smith, 124 Miss. 604, 87 So. 7.

The appellees under the evidence on the motion to dissolve conclusively show that no damages were sustained, such as allowed by the court, as attorney fees, for the reason that the testimony shows that the attorneys representing appellees had the case on a contingent basis.

While the contrary view has been taken, it very generally has been held that the mere fact that the party has not paid the counsel fees does not prevent their recovery where he is liable therefor. It is of course essential that the person claiming the allowance should be actually liable for the fees; and it is erroneous to make an allowance in the absence of any evidence that the person claiming the allowance had become liable to pay for services of counsel in and about the dissolution of the injunction.

32 C. J., sec. 824, pages 477-478.

While a contract for a contingent or speculative fee may be good as between attorney and client, who make it, it cannot be recognized as a proper basis on which to charge the adverse party in an assessment of damages upon dissolution of an injunction. Such assessment must rest upon equitable grounds and not exceed the damages actually sustained.

32 C. J. 478.

In no event can defendant recover more than he has paid or has become bound to pay, or than he himself claims.

32 C. J., sec. 825, page 478.

Hugh McIntosh, Jr., of Collins, and G. Wood & Shirley Magee, of Monticello, for appellees.

In this case the relationship of landlord and tenant never existed between the appellant and appellee, Hardy, and for this reason, appellant had no right to proceed as he did.

Raleigh State Bank v. Williams, 150 Miss. 766, 117 So. 365; Hill v. Gilmer, 21 So. 528; Stevens v. Moore, 1 Miss. 537; Pennington v. Ritchie, 102 Miss. 133, 58 So. 657; 35 C. J. 951.

In support of the first ground of demurrer the appellees cite the following cases:

Miss. Power & Light Co., case, 150 So. 830, 168 Miss. 400, 152 So. 271; Supreme Court Rule No. 31.

In support of grounds two, three and four of the demurrer, appellees cite the following authority:

Griffith's Chancery Practice, sec. 436.

In support of the fifth ground of demurrer, the following authority is cited.

Hunter v. Hawkinson, 141 Miss. 279, 106 So. 514.

In support of the contention that appellant is precluded from having the issue involved litigated again, and that all his rights had already been litigated and determined in a former suit, No. 8050, Hardy v. Riley, in the Chancery Court of Lawrence County, Mississippi, the following authorities are cited.

Cotton v. Walker, 144 So. 45, 164 Miss. 208; Fair v. Dickerson, 144 So. 238, 164 Miss. 432; Darrow v. Moore, 142 So. 447, 163 Miss. 705; Bates v. Strickland, 103 So. 432, 139 Miss. 636; Vinson v. Col. & N. S. Mort. Co., 76 So. 827, 116 Miss. 59.

Appellees submit, with respect, that on the affirmance of this cause, the court should allow appellees an additional attorney's fee for services rendered in defending this appeal, the amount and reasonableness of which they submit to the judgment and discretion of this court.

OPINION

Anderson, J.

Appellant, J. D. Riley, was the complainant in the court below, and the appellees, John C. Hardy, and W. R. and D. W. Rawls, Brookhaven Compress Company, and Hohenburg and Company, were the defendants. There are two principal questions involved; there are others which we do not deem of sufficient merit to require discussion. The two which we are of opinion should be discussed are: (1) Whether the relation of landlord and tenant existed between Riley and Hardy during the year 1934; and (2) whether the defendants on the dissolution of the injunction issued in the cause were entitled to recover on the injunction bond a solicitor's fee for their services in procuring such dissolution.

The cause was heard on amended bill, exhibits thereto, answer and demurrers, and motion to dissolve the injunction, and oral testimony taken on the motion. There was a final decree dissolving the injunction, awarding defendants $ 62.50 as a fee for the services of their solicitors in having the injunction dissolved, sustaining the demurrers to the amended bill, and, Riley declining leave to plead further, a decree was entered dismissing the bill.

The facts are embodied in the amended bill and exhibits thereto which exhibits include the proceedings in a former suit between Riley and Hardy, including the final decree in that cause, involving the title to the land on which Riley claims Hardy was his tenant for the year 1934. In substance, the following are the facts: Hardy owned 125 acres of farm land. He was indebted to Riley, and, to secure the indebtedness, he and his wife executed a deed of trust on the land in Riley's favor. Default was made in the payment of the indebtedness. Riley had the deed of trust...