Wabash R. Co. v. Flannigan

Citation218 Mo. 566,117 S.W. 722
PartiesWABASH R. CO. v. FLANNIGAN et al.
Decision Date31 March 1909
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Action by the Wabash Railroad Company against Alexander Flannigan and another. From the judgment, plaintiff appeals. Transferred from the St. Louis Court of Appeals. Cause returned to said court.

For prior report, see 118 Mo. App. 124, 100 S. W. 661.

Geo. S. Grover and J. L. Minnis, for appellant. Jno. D. Johnson, W. H. Biggs, and Virgil Rule, for respondents.

VALLIANT, J.

This cause was transferred to this court from the St. Louis Court of Appeals on the idea that a constitutional question is involved, but after going through the record we are satisfied that there is really no such question in the case.

The controversy arose in a motion to assess damages on an injunction bond after the injunction had been dissolved. The facts were as follows: One Tourville was an employé of the Wabash Railroad Company, and the company owed him $81.98. Flannigan brought suit against Tourville before a justice of the peace in East St. Louis, St. Clair county, Ill., and obtained judgment against him, and also a judgment against the Wabash Railroad Company, as garnishee of Tourville, for $81.98, the amount the company owed him. Then Tourville sued the Wabash Railroad before a justice of the peace in the city of St. Louis for the same debt, and obtained judgment for that amount, and assigned the judgment to Virgil Rule. Then the Wabash filed in the circuit court of the city of St. Louis a bill of interpleader against Flannigan and Rule praying to be allowed to pay the money into court and let those two interplead for it; praying also an injunction to restrain Rule from levying the execution which he had sued out. The preliminary injunction was issued, the Wabash Company giving an injunction bond for $1,000. That suit was contested, and the end of it was that the injunction was dissolved and the bill dismissed. Then came the motion to assess damages on the injunction bond, on the hearing of which the court assessed in favor of Rule $200 as for his liability for attorney's fees incurred in that litigation. The case seems to have turned in the circuit court on the question of fact whether any attorney's fees were paid or liability for such incurred, and also the question of law whether attorney's fees could be assessed in such case. The judgment was for the amount of the injunction bond, $1,000, to be satisfied on payment of the damages assessed, $200.

In its motions for a new trial and in arrest of judgment, among other grounds, the appellant said: "(7) Because in entering said judgment this honorable court denied the defendant (doubtless meaning plaintiff) the equal protection of the laws, and deprived it of its property without due process of law in violation of the fourteenth amendment to the Constitution of the United States, and of section 30 of article 2 of the Constitution of the state of Missouri (Ann. St. 1906, p. 166)." After those motions were overruled, appellant applied for an appeal to the St. Louis Court of Appeals, and it was granted, and the record was lodged in that court for review. In due time appellant filed in that court its abstract and brief. In the latter, under the caption "Points and Authorities," were only two points: First. "The restraining order being merely incidental or ancillary to the principal object of the suit, and its dissolution being wholly contingent upon a denial of the principal relief demanded, counsel fees incurred in defending the suit were not proper items of damages to be assessed on the injunction bond." Second. "Respondent was not damaged. He incurred no liability to Mr. Johnson (the attorney mentioned in the evidence) for advice or services, and was not,...

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  • Aufderheide v. Polar Wave Ice & Fuel Co.
    • United States
    • Missouri Supreme Court
    • March 17, 1928
    ...Mo. 442; Kirkwood v. Meramec Highlands Co., 160 Mo. 111; Burns v. Ins. Co., 295 Mo. 680; McManus v. Burrows, 280 Mo. 327; Wabash Railroad Co. v. Flanagan, 218 Mo. 566. (8) To give this court jurisdiction on constitutional grounds there must be a decision adverse to appellant, and no such de......
  • State, on Inf. of McKittrick v. Williams
    • United States
    • Missouri Supreme Court
    • November 9, 1940
    ... ... 42; Lohmeyer v. Cordage ... Co., 113 S.W. 1108, 214 Mo. 690; Schildnecht v ... Joplin, 327 Mo. 126, 35 S.W.2d 36; Wabash Railroad ... Co. v. Flannigan, 218 Mo. 566; First Natl. Bank v ... Foster, 271 S.W. 536. (5) The respondent was not ... entitled to a trial by ... ...
  • Baker v. Sovereign Camp, W. O. W.
    • United States
    • Missouri Supreme Court
    • March 8, 1939
    ...the case in the Kansas City Court of Appeals on other grounds and without raising the constitutional question there. Wabash Ry. Co. v. Flannigan, 117 S.W. 722; Parker-Washington Co. v. Field, 219 S.W. California Road Dist. v. Bueker, 248 S.W. 927; Sutton v. Anderson, 31 S.W.2d 824; McGill v......
  • State ex Inf. McKittrick v. Williams, 36718.
    • United States
    • Missouri Supreme Court
    • November 9, 1940
    ... ... Boatmen's Bank, 250 S.W. 42; Lohmeyer v. Cordage Co., 113 S.W. 1108, 214 Mo. 690; Schildnecht v. Joplin, 327 Mo. 126, 35 S.W. (2d) 36; Wabash Railroad Co. v. Flannigan, 218 Mo. 566; First Natl. Bank v. Foster, 271 S.W. 536. (5) The respondent was not entitled to a trial by jury. State ex ... ...
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