Yazoo & M.V.R. Co. v. Adams

• Decision Date: 23 March 1901
• Citation: 30 So. 44,78 Miss. 977
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD Co. v. WIRT ADAMS, STATE REVENUE AGENT. [*]
• Court: Mississippi Supreme Court

30 So. 44

78 Miss. 977

YAZOO & MISSISSIPPI VALLEY RAILROAD Co. v. WIRT ADAMS, STATE REVENUE AGENT. ^[*]

Supreme Court of Mississippi

March 23, 1901

FROM the circuit court of Hinds county, first district. HON ROBERT POWELL, Judge.

Adams state revenue agent, appellee, was the plaintiff, and the railroad company, appellant, defendant in the court below. The opinion states the case.

Judgment reversed and case dismissed.

J. M Dickinson and Mayes & Harris, for the appellant.

The court below should have taken one or the other of two courses. It should have dismissed the suit as premature, or it should have suspended judgment until the determination of the appeal to the supreme court of the United States.

"An action on an injunction bond, instituted pending a valid appeal to the supreme court of the United States from a final decree of the district court dismissing the plaintiff's bill, cannot be maintained, although the appeal was taken without supersedeas. The operation of the final decree of the district court is suspended by the appeal." Cohn v Lehman, 93 Mo. 574. See also the following cases: White v. Clay, 7 Leigh, 68; Bentley v. Joslin, Hemp., 218; Penny v. Holberg, 53 Miss. 567; Goodbar v. Dunn, 61 Miss. 624; Bemis v. Gannett, 8 Neb. 236; Clark v. Clayton, 61 Cal. 634; Thompson v. McNair, 64 N.C. 448; Gray v. Giers, 33 Md. 159.

It seems clear that as long as there is a legal possibility of the reversal of the judgment of the court below by which the injunction is dissolved, as long as there is a legal possibility that in due course of litigation the injunction shall be reinstated in the identical cause in which it was originally issued, it cannot be that the obligees in the injunction bond shall be entitled finally to recover judgment for damages on dissolution. Any other holding would lead to the absurdity that a final judgment shall be rendered because of the dissolution, and yet it shall be finally determined by the courts of competent jurisdiction that the injunction was improperly dissolved, and must be reinstated; and the courts shall thereby appear in the absurd attitude of awarding damages for the dissolution of an injunction still pending, and which may be, in the long run, perpetuated. Since the above was printed the judgment of the United States court has been, in fact, reversed, and the cause is to be reinstated in that court.

Again: it is not the mere dissolution of an injunction which entitled the obligees in the bond to recover. There must be a damage, and the foregoing cases show that any suit brought on the injunction bond is prematurely brought unless there has been a legal adjudication of the ultimate right of the parties enjoined to do the thing, or to enjoy the property right, which they were enjoined from doing or enjoying. In other words, the court cannot consent to occupy the singular attitude of holding that a party is entitled to a judgment upon the dissolution of an injunction before it has been somewhere or other adjudged that he has a right to the thing which he was enjoined from doing.

Would it not be a singular attitude if this court should hold that the appellees are entitled to recover interest on taxes as damages because they were restrained from collecting the same, when it is entirely possible that it may be finally adjudicated that they are not entitled to the taxes themselves? The court below should not have rendered any judgment for interest on the taxes until there had been a final adjudication that the plaintiffs were entitled to the taxes themselves. They cannot be entitled to the interest and not to the principal.

The agreed state of facts showed that at the same time the judgment was rendered, the judgment which the state revenue agent had recovered for the taxes of 1898, was pending on appeal with supersedeas to this court and was still undetermined. There the record ends. As a matter of fact the judgment was affirmed, but it is also true, as this court will judicially know, that the same judgment is now also pending on writ of error, with supersedeas, before the supreme court of the United States.

Suppose the supreme court of the United States should hold that the privilege reserved by section 5 of the charter of the Louisville, New Orleans & Texas Railway Company was in fact a contract right, and not repealable, and not lost by the consolidation of 1892--then what sort of attitude would this judgment be in? There the case of San Bernardino County v. R. R. Co., 118 U.S. 417, 425, becomes pertinent. If the defendant is not liable for the taxes, it certainly is not liable for any incident to the taxes, and the question of the liability for the incidents must necessarily be held in abeyance until the final determination of the question of the liability for the principal.

What is above said with reference to the suit on the injunction bond of course is equally applicable to the suit on the supersedeas bond.

Critz, Beckett & Kimbrough and Green & Green, for the appellee.

The bill was finally dismissed on May 1, 1899, and an appeal granted without supersedeas on May 3, and this suit on the bonds brought May 19, 1899.

It is true, as held in Penny v. Holberg, 53 Miss. 567, that a suit could not be brought on the bond till the bill had been dismissed. An appeal was granted, but it was without supersedeas, and whatever conflict there may be among the authorities, as to whether a judgment or decree is res adjudicata, where it has been superseded, there seems to be none where no supersedeas is granted. In such cases, the appeal, or writ of error, is in the nature of a new suit to set aside the judgment or decree, and has no effect till it is set aside or vacated. Hence, it is no objection to a suit on an injunction bond. Fears v. Riley, 147 Mo. 453, par. 4, p. 457. And in this state it is expressly held that where there is no supersedeas, or it has been discharged, the bond may be sued on. Somerville v. Mayes, 54 Miss. 33.

Interest is statutory. Under the code of 1892, § 2348, it is made a legal incident at the rate of 6 per centum on "notes, accounts and contracts." This, of course, does not embrace taxes.

Under § 2350, judgments and decrees bear interest at the rate of the debt sued on. "All other judgments and decrees shall bear interest at the rate of 6 per centum per annum." Under similar provisions it is held by the supreme court of the United States, that a judgment for taxes should bear interest from and after its rendition. West. Union Tel. Co. v. Indiana, 165 U.S. 309. And this court has affirmed various judgments in the course of this litigation, all bearing interest. So, there is no remoteness or uncertainty, but a certainty and directness that there was a loss of interest for the time that the plaintiff was prevented by the injunction from obtaining judgment.

Since the bond was sued on in this case the original case has been reversed by the supreme court of the United States and the bill reinstated.

The record shows that after the injunction was dissolved, preventing us from suing, we sued. It was not an injunction, but a temporary restraining order, which was discharged, and no injunction was ever granted, but absolutely refused. This temporary restraining order expired by its own force and terms under the law when the injunction was refused, and it was not, and never could be, reinstated under any conceivable state of facts.

The federal laws are different from ours in that respect. The federal law is section 718 of the revised statutes of the United States, and is as follows: "Whenever notice is given of a motion for an injunction out of a circuit or district court of the United States, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the court or judge."

While the bond given in this case has the same force and effect as an injunction bond, still it was not under latter clause supra, and, under the terms of the statute, was only to last "till the decision upon the motion" for the injunction. A time and place was fixed by agreement, and the plaintiff, the Yazoo & Mississippi Valley Railroad Company...