Smith v. Perkins

• Decision Date: 06 June 1921
• Docket Number: 21566
• Citation: 88 So. 531,125 Miss. 203
• Court: Mississippi Supreme Court
• Parties: SMITH v. PERKINS, et al

88 So. 531

125 Miss. 203

SMITH v. PERKINS, et al

No. 21566

Supreme Court of Mississippi

June 6, 1921

On respondents' motion for an attorney's fee. Motion overruled.

For former opinion, see 88 So. 177.

Motion overruled.

OPINION

ETHRIDGE, J.

The appellant filed a bill to enjoin a sale under a mortgage. The injunction was dissolved by the final decree of the chancery court which decree allowed five per cent., from which judgment an appeal was prosecuted with a supersedeas, and which was affirmed by this court on a former day of this term, and suggestion of error overruled. Now the appellee files this motion for an attorney's fee for defending the appeal.

Section 623, Code of 1906 (section 383, Hemingway's Code), reads as follows:

"When an injunction, obtained to stay proceedings on a judgment at law for money, shall be dissolved, in whole or in part, damages at the rate of five per centum shall be added to the judgment enjoined, or to so much thereof as shall be found due, including the costs; and the clerk of the chancery court shall certify such dissolution to the clerk of the court in which the judgment was rendered, who shall thereupon issue execution for the damages, as well as for the original debt and costs. Damages at the same rate shall be allowed upon the dissolution of injunctions to stay sales under deeds of trust, or mortgages with power of sale; and such damages may be added to the debt, and collected by the sale of the property, or execution may issue from the chancery court for the same, together with the costs of suit, unless the value of the property, the sale of which was restrained, be less than the amount of the debt, in which case the damages shall be computed on the value of the property, to be ascertained and determined by the chancellor; and in all cases upon the dissolution of an injunction the damages may be ascertained by the court or chancellor, or upon reference to a master and proof, if necessary, and decree therefore be made, and execution be issued thereon."

This section has been constructed in a number of cases so as to make the five per cent., allowance for damages to include all damages. In the case of Williams v Bank of Commerce, 71 Miss. 858, 16 So. 238, 42 Am St. Rep. 503, this court so held. In Mortgage & Trust Co. v. Fitzpatrick et al., 16 So. 877, the court again held that it was in lieu of all damages, and where they were not claimed, none could...