Vicksburg Water Works Co. v. City of Vicksburg

• Decision Date: 17 April 1911
• Docket Number: 14,873
• Citation: 54 So. 852,99 Miss. 132
• Court: Mississippi Supreme Court
• Parties: VICKSBURG WATER WORKS CO. ET AL. v. MAYOR AND ALDERMEN OF CITY OF VICKSBURG

54 So. 852

99 Miss. 132

VICKSBURG WATER WORKS CO. ET AL. v. MAYOR AND ALDERMEN OF CITY OF VICKSBURG

No. 14,873

Supreme Court of Mississippi

April 17, 1911

APPEAL from the circuit court of Warren county, HON. C. S. THOMAS Special Judge.

Suit by mayor and board of aldermen of the city of Vicksburg against the Vicksburg Water Works Company et al. From a judgment for plaintiff defendants appeal.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

John C Bryson and Hirsh, Dent & Landau, for appellant.

The legal questions raised by the assignment of error are reducible to four:

1st. Is the plaintiff's suit (having been brought before a final decree in the chancery cause in which the injunction bond was given) premature?

2d. Is the defendant, having regularly retained counsel paid by the month, entitled to compensation for additional counsel employed in the injunction suit?

3d. If it should be held that the plaintiff is entitled to compensation for the special counsel employed to assist the regular counsel in the injunction matter, can it recover by way of damages a reasonable fee for the whole service rendered regardless of that done by regular counsel or must the plaintiff make a reduction to cover the services of the regular attorney whose entire service is covered by his fixed salary?

4th. Has the plaintiff proven any damages on account of liability for attorney's fees?

We shall present these four questions in their order.

1. Was the plaintiff's suit premature? No final decree had been rendered in the chancery suit. In fact no decree of any kind had been rendered in it, except the decree on the motion to dissolve the injunction? By that decree the injunction was dissolved but complainant's suit was not dismissed, nor were damages assessed as might have been done under the statute, the decree providing merely in reference to damages "That the claim for damages on account of the wrongful suing out of the said injunction interposed by the defendants hereto, be and it is hereby passed for hearing at a future time."

Such was the status of the chancery suit when this suit on the injunction bond was brought. We contend that no right of action on the injunction bond had accrued.

In Penny v. Holburg, 53 Miss. 567, Judge Chalmers said "It was an action upon an injunction bond given to restrain a sale of certain lands under an execution at law. Upon final hearing, the chancellor dissolved the injunction as to a portion of the lands, and retained the cause for further investigation and consideration as to the balance. He granted an appeal from this decree to the supreme court where the order was affirmed and the cause remanded for further proceedings touching the lands as to which no decree had been rendered. Thereupon, without waiting for the action of the chancery court. The court further said: "So long as the suit remains in court undetermined, it is always possible, however improbable, that cause may be shown to reinstate and render perpetual the injunction in whole; and the lower court would not be deprived of the power to do this in a proper case, by the affirmance here of the partial dissolution. It follows, therefore, that until there has been a final determination of the suit in which the injunction bond was executed, no action at law can be maintained. . . ." High on Injunctions, par. 981; Gray v. Veirs (Md.), 159; Goodbar & Co. v. Dunn et al., 61 Miss. 624; Railroad Co. v. Adams, St. Rev. Agent, 78 Miss. 977; Cohn v. Lehman, 93 Mo. 547.

In discussing the right to sue upon an injunction bond, 22 Cyc., 1045 says: "The plaintiff should allege a final determination of the injunction suit."

Under this text a great many authorities are cited: 10 Ency. of Pleading and Practice, p. 1121; Decennial Digest, vol. 10, p. 2032; 98 N.W. 366; Lacey v. Davis, 102 N.W. 535, 126 Iowa 675; Brown v. Galena Mining & Smelting Co., 4 P. 1013, 32 Kan. 528; Johnson v. Bouston, 77 N.W. 57, 56 Neb. 626.

2. This brings us to the second point raised by the assignment of errors, namely: Is the defendant, having regularly employed counsel, entitled to damages by way of counsel fees?

In Nixon v. Biloxi, 76 Miss. 810, this court held: That the city of Biloxi having regularly retained counsel, paid a fixed salary, was not entitled to damages by way of attorney's fees on the dissolution of an injunction where all the services rendered in procuring the dissolution had been by such counsel. Wilson v. Wilber, 3 Ill.App. 125, affirmed in 96 Ill. 454.

3. If the court should agree with us, however, as to the full extent of our contentions above certainly the services of the regular counsel should reduce the fee pro tanto to the extent of the services rendered by him in procuring the dissolution of the injunction. The evidence shows that the one thousand dollars award was a reasonable fee for the whole service by the city attorney and his two associates, and it further shows that the city attorney, Judge Anderson, rendered a large part of the aggregate service.

Catchings & Catchings, Anderson, Voller & Foster, and Brunini & Hirsch, for appellee.

With all due respect to counsel we submit that the authorities cited by them to the effect that a suit on an injunction bond cannot be brought until a final decree has been rendered in the chancery proceeding, have no application to the case at bar.

It appears from the record of the injunction proceeding, which is a part of the record in this cause, that the suit was brought for an injunction only, and that no other equitable relief was asked for. As shown by the record, the city of Vicksburg had caused to be constructed an elaborate sewerage system, which was practically complete and was being flushed or tested with water from the mains of the Vicksburg Water Works Company, when that company procured the issuance of an injunction prohibiting the use of its water for that purpose.

The injunction was dissolved; the testing or flushing was proceeded with, and had, in fact, been finished at the time of the trial of this cause in the court below. Nothing, therefore, remained to be done in the injunction suit except the rendition of a formal final decree dismissing the bill.

The case of Derdeyn v. Donovan, 81 Miss. 696, is squarely in point. In that case, as in the case at bar, suit was brought upon an injunction bond before the rendition of a decree final in form in the chancery proceeding. Judge Whitfield delivered the opinion of the court and drew the very distinction which we have adverted to above, between cases in which the injunction was the only relief sought, and those in which it was merely ancillary to other grounds of equitable cognizance. He said:

"The distinction as between those cases in which the bill is filed solely for an injunction and in which, of course, the dissolution of the injunction carries with it the dismissal of the bill, and those very different cases in which an injunction is asked for as a mere auxiliary or aid in effectuating the principal relief resting upon distinct equitable grounds. In this class of cases the bill is, of course, retained until final hearing, and it is the better practice, as a rule, not to dissolve such an injunction until final hearing, for the obvious reason that if it were dissolved and the damages allowed, proof subsequently taken might make it proper to reinstate the injunction and require the damages refunded. In this case the dissolution of the injunction ended the whole matter. The equities of the bill as to the conveyance being a valid conveyance are all sworn away by the answer, and the rule in such cases is stated thus in vol. 10, Ency. Pl. and Pr., 1048: 'As a general rule, upon the coming in of an answer denying the equities of a bill, the defendant is entitled to have the injunction dissolved.' The bill here was for injunction only. When the injunction was dissolved the court dismissed the bill, the case was at an end, and it was entirely proper to allow the damages. The only question litigated or left to be litigated--the equities of the bill being sworn away by the answer--was whether the property was a homestead and what its valuation was."

With all due deference to counsel for appellants we submit that the authorities cited by them in support of the second subdivision of their argument are wholly without application to the facts of the case at bar. So far as we know, there is no authority in the books which holds that one having regularly retained counsel cannot recover by way of damages such reasonable attorney's fee as he may have contracted to pay additional counsel who were employed to procure the dissolution of an injunction. Certainly the authorities cited by counsel bear no such construction.

The right of the city of Vicksburg to employ counsel other than the regularly retained city attorney, and to contract for the payment of their fees, is not, as we understand appellants' brief, denied. That the city has such right is amply sustained by all of the authorities.

This court has held, in the case of Warren County v. Booth, 81 Miss. 267, that boards of supervisors who have regularly retained attorneys, may, nevertheless, employ other counsel to represent them in particular cases, and may legally obligate themselves to pay their fees. The reasoning of the court is equally applicable to municipal authorities.

We entirely agree with counsel that appellee was not entitled to recover by way of damages anything on account of the services rendered to it by its regularly retained city attorney, and no such contention was advanced in the court below. Counsel's argument, however, seems to proceed upon the theory that lawyers must be paid upon a per capita basis, and that because appellee had...