Yale v. Baum
| Citation | 70 Miss. 225,11 So. 879 |
| Parties | YALE & BOWLING v. JOSEPH BAUM ET AL |
| Decision Date | 17 October 1892 |
| Court | United States State Supreme Court of Mississippi |
FROM the circuit court of Lauderdale county, HON. S. H. TERRAL Judge.
Appellants Yale & Bowling, sued out an attachment against L. Solomon & Co., which was levied on certain goods. Joseph Baum & Co. claimed to have purchased the goods, and obtained an injunction restraining the plaintiffs from subjecting them to their attachment. The injunction suit was heard on pleadings and evidence, and a decree was entered therein dismissing the bill, "without prejudice to either party." Thereupon this action was brought by appellants against Baum & Co. and their sureties on the injunction bond, to recover damages for the wrongful suing out of the injunction. The plaintiffs, at the trial, offered in evidence the bond and proceedings in the injunction suit, including the decree of dismissal, besides other testimony in support of their demand. Defendants contended that, inasmuch as the decree of dismissal was without prejudice, they were not concluded thereby, but were entitled to show that the goods were not liable to plaintiff's attachment, and that the injunction was rightly sued out. Much evidence was offered in support of this contention. The court gave to the jury a peremptory instruction to find for defendants, and judgment was rendered accordingly. Plaintiffs excepted and appealed.
Among other things, the plaintiffs in the court below proved that a reasonable fee for the services of their solicitor in defending the injunction suit was $ 125. It appeared that no motion was made to dissolve the injunction, but that the case was heard on pleadings and evidence, when the decree of dismissal was entered.
As the opinion of the court is confined to only one point, it is not deemed necessary to make any further statement of the case.
Judgment reversed.
Miller & Baskin, for appellants.
The effect of the decree of dismissal was to dissolve the injunction, thereby declaring that it was wrongfully sued out. According to the undisputed testimony, appellants were damaged by suing out the injunction, and were entitled to recover therefor. As to the right to recover for attorneys fees in defending the injunction suit, see Baggett v Beard, 43 Miss. 120.
N. C. Hill, on the same side.
The court erred in giving a peremptory instruction in favor of defendants. They were estopped by the decree of the chancery c...
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Johnson v. Howard
...of same. Griffith's Chancery Practive, p. 489, section 463, footnote 23; Alexander v. Woods, 115 Miss. 169, 75 So. 772; Yale v. Baum, 70 Miss. 225, 11 So. 879; Rubon v. Stephan, 25 Miss. 253; Baggett v. Beard, 43 Miss. 120. Where a suit is for injunction only, and injunction is dissolved, d......
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... ... City et al., 142 N. W. (Ia.) 212; Coleman v. Hudson ... &c. Co., Fed. Cases No. 2983; Hoyt v. Carter, 7 How ... Pr. (N. Y.) 140; Yale v. Baum, 70 Miss. 225, 11 ... So. 879; Lyons v. Green, 68 Ark. 205, 56 S.W. 1075; ... Day v. Bailey, 41 So. 448, 117 La. Ann. 154; ... Lewis ... ...
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