Tillman v. Heard

• Decision Date: 12 April 1909
• Citation: 95 Miss. 238,48 So. 963
• Court: Mississippi Supreme Court
• Parties: JACOB F. TILLMAN v. FRANK A. HEARD ET AL., EXECUTORS

48 So. 963

95 Miss. 238

JACOB F. TILLMAN v. FRANK A. HEARD ET AL., EXECUTORS

Supreme Court of Mississippi

April 12, 1909

March 1909

FROM the chancery court of Washington county, HON. M. E. DENTON Chancellor.

Tillman appellant, was complainant in the court below; Heard and others, appellees, were defendants there. From a decree in defendants' favor, dissolving an injunction, complainant appealed to the supreme court.

Tillman appellant, a resident of Mississippi, while temporarily in Muscogee county, Georgia, was there sued in the superior court of that county by the executors of the will of W. L Tillman, deceased, on a claim for eleven thousand dollars. Before the suit was tried in the Georgia court, the executors of the will took out ancillary administration of the estate in Washington county, Mississippi, wherein their testator owned at his death lands and personalty. Whereupon appellant began this suit in the chancery court of Washington county to restrain the executors from prosecuting further the Muscogee county, Georgia, suit.

The chancellor's fiat awarded the issuance of an injunction as prayed for upon the execution of a bond in the sum of two thousand dollars. Appellant made the bond, and a temporary injunction was issued.

Code 1906, § 609, is as follows:

"An injunction to stay proceedings at law shall not be issued until after the party obtaining the fiat for the same shall enter into bond, payable to the plaintiff at law, in double the amount of the debt sought to be enjoined, with two or more sufficient sureties, to be approved by the judge, or chancellor, or by the clerk issuing the injunction, conditioned for paying all money and costs due or to become due to the plaintiff in the action at law, and also such costs and damages as shall be awarded against him in case the injunction shall be dissolved; which bond shall be taken by the clerk issuing the injunction, and shall be by him filed with the bill. If any clerk shall, in any case, issue an injunction without having first, taken bond as required by law, he shall forfeit to the party aggrieved the sum of five hundred dollars, to be recovered in an action, and shall, moreover, be liable on his official bond for all damages sustained thereby."

Affirmed.

Hugh C. Watson, for appellant.

Shields & Boddie and Percy, Moody & Percy, for appellees.

OPINION

MAYES, J.

The question presented by this record is confined to...