Curphy v. Terrell

| Miss. | Nov 15, 1906

Whitfield, C. J.,

delivered tbe opinion of the court.

This case is controlled by the principle announced in Jamison v. Dulaney, 74 Miss., 890" court="Miss." date_filed="1897-03-15" href="https://app.midpage.ai/document/jamison-v-dulaney-7988026?utm_source=webapp" opinion_id="7988026">74 Miss., 890 (s.c., 21 South. Rep., 972). The principle is this: When an injunction is sued out merely in aid of or as auxiliary to the principle equitable relief sought to be established by the bill, and the injunction is dissolved, counsel fees caused by the wrongful issuance of the injunction are properly recoverable both for services in securing the dissolution in the lower court and for services in preventing that decree from being reversed in the supreme court, because all such services, so rendered, are rendered in the effort to dissolve the injunction and keep it dissolved, and the fees in both courts are directly occasioned as damages by the wrongful issuance of the injunction, always provided that the fees in the supreme court in such case are fees rendered solely in resistance of an interlocultory appeal to reverse the decree dissolving the injunction. If in such case the bill is retained after the injunction has been dissolved for the hearing of the matter of equitable cognizance involved in the bill, that case proceeding to hearing and decree in the court below or later in the appellate court on appeal, no counsel fees can be allowed the attorneys for the respondent, for services thus rendered not in and about the dissolution of-the injunction at all, but solely in and about ■ the conduct of the trial on the hearing in the chancery court or the supreme court, for the obvious reason that those fees were in no way occasioned by the issuance of the injunction. So in those cases in which there is no matter of equitable cognizance at all, except the- injunction itself, and in which, of course, the dissolution of the injunction involves the dismissal of the bill, counsel fees are-allowable for services both in the court below and in the supreme court, for the very obvious reason that they are all incurred in securing and maintaining the dissolution of the injunction, and are thus damages caused by its issuance.

The principle is plainly stated in the case referred to, and in the case of French Piano Co. v. Forbes (Ala.), 32 South. Rep., 678, where the court says: “In the injunction suit an appeal was taken by the defendant from the, decree of the chancellor dissolving the injunction, and it is now contended by appellants here that there can be no recovery in a suit on the injunction bond for attorney’s fees incurred by the plaintiffs on such appeal. The purpose of the appeal was to review and reverse the decree dissolving the injunction, and the reversal of the decree would necessarily reinstate the injunction. Attorney’s fees incurred in resisting the effort to have the decree of dissolution set aside are as much the natural and proximate 'results of the issuance of the writ as are the fees incurred in procuring the dissolution in the first -instance. . . . The bond sued on contracts to pay damages caused by the issuance of the writ, and such as are the natural and proximate consequence of its issuance, and not antecedent damages. It is insisted that what was said in Bolling v. Tate, 65 Ala., 417" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/bolling-v-tate-6510644?utm_source=webapp" opinion_id="6510644">65 Ala., 417 (39 Am. Rep., 5), in this connection, is dictum, and should be departed from. We have approved of the reasoning employed in that case, and now sanction as the law what is insisted by counsel was dictum —citing 65 Ala., 417" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/bolling-v-tate-6510644?utm_source=webapp" opinion_id="6510644">65 Ala., 417 (39 Am. Rep., 5) ; Cooper v. Hames, 93 Ala., 280" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/cooper-v-hames-6514399?utm_source=webapp" opinion_id="6514399">93 Ala., 280 (s.c., 9 South. Rep., 341); Jackson v. Millspaugh, 100 Ala., 285" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/jackson-v-millspaugh-6515365?utm_source=webapp" opinion_id="6515365">100 Ala., 285 (s.c., 14 South. Rep., 44).” The cases cited by the learned counsel for the appellant are not in point. They are simply cases or text-books announcing the well-settled proposition that the injunction bond is not a security for the fees for services rendered in the conduct of the case on its merits.

It is a matter of common knowledge amongst the profession that a less fee should be allowed for services in the supreme court than in the circuit or chancery court. The old tariff in use in this state customarily made the fee in this court one-half the fee in the court below. The whole profession may be said to have knowledge of this fact. The appeal from the decree below presents this as-a question for our consideration, and we are of the opinion that $15 each was the limit of a proper allowance for services in this court, in viéw of the fact that $300 had already been allowed for services rendered in the court below in securing the dissolution of the injunction.

The decree will he reversed, and a decree entered here for one-half the amount awarded helow. 8o ordered.