Alexander v. Woods

75 So. 772 | Miss. | 1917

Sykes, J.,

delivered the opinion of the court.

The appellants filed suit in the circuit court against the appellees, based upon an injunction bond given in a suit which has been pending in the chancery court. The appellees in the chancery court had obtained a temporary injunction against appellants for reasons unnecessary to be herein stated. A temporary injunction was granted and a written suggestion of damages which would be asked by the defendants upon the dissolution. of the injunction had heen filed in the chancery court. After some legal proceedings, unnecessary to set out, the case was set down for hearing upon bill and answer, when the same was dismissed at the request of complainants. No action was taken in that court with reference to the suggestion of damages. After the dismissal of the bill in the chancery court this suit was filed. At-the conclusion of the testimony in the circuit .court a peremptory instruction was given for the defendants.

Two reasons are assigned in this court by the appellees as to why this was proper — the first being, that no damages were sustained by the issuing of the temporary injunction; second, that the dismissal of the case without awarding any damages was res adjudicata on the question of damages. The chancellor did not pass upon the question of damages in that court; consequently it is not res adjudicata.

That this suit may be maintained at law is settled by section 624, Code of 1906. The dismissal of the bill in the chancery court operated as a dissolution of the injunction and established the fact that it had been wrongfully sued out, and that the appellants here are entitled to recover whatever damages they sustained by the issuing of same. Yale v. Baum, 70 Miss. 225, 11 So. 879; Baggett v. Beard, 43 Miss. 120.

Reversed and remanded.