66 Miss. 642 | Miss. | 1889
delivered the opinion of the court.
The complaint made against the notes is that they bear interest and provide that the maker shall pay attorneys’ fees in case the notes shall be collected by law. The notes are all based on the same transaction and consideration, and it is alleged in the bill that the same issues were made in the suits pending at law, and will be made in subsequent suits on the notes, which are presented in the billi
A final judgment on either of the notes involving these issues would be res adjudícala in any other suit between the same parties on any or all of the other notes. Gardner v. Bucklee, 3 Cow. 127 ; 15 Am. Dec. 256 ; Bouchand v. Dias, 3 Denio 243 ; Lumber Co. v. Buchtel, 101 U. S. 638; 1 Herman on Estop. & Res Judicata, §§ 210-277 ; Wells on Res Adjudicata, §§ 210, 221, 285.
From this standpoint some of us were inclined, at the argument, to take the view that the remedy at law was complete and adequate; that there could be no multiplicity of suits in the matter such as equity would restrain, and that the injunction was improvidently issued and might well have been dissolved on the face of the bill without answer and without proof. 2 High on Injunctions, § 1469. But, as no final judgment has yet been rendered in the suits at law — appeal having been taken from the judgment of the justice of the peace — and as the notes mature monthly, and suit may be brought on more of them before final judgment can be obtained on either of them at law, the above view may not be maintainable.
But however this may be, the answer was responsive to and denied every material allegation of the bill, and proof had been taken by both parties, and if the proof was not all in, there was no application for further time to take proof either by affidavits or depositions, nor does it appear from the record that there was any suggestion by appellant that he desired to take further proof. The
In this state of ease, it was clearly right to dissolve the injunction.
And as it was proper under the circumstances to dissolve the injunction, doing so, “ without prejudice to defendant’s right to sue for damages on the injunction bond,” affords no ground for complaint. It conferred no new right or privilege on the defendant, but simply furnished evidence that the matter of damages as claimed was not adjudicated by the court. On final disposition of the suit, if in his favor, appellee might have sued on the injunction bond for such damages, as well without as with such provision in the decree. Penny v. Holberg, 53 Miss. 567 ; Goodbar v. Dunn, 61 Ib. 624.
It is a part of § 1919 of the code that if upon the dissolution of an injunction damages are not assessed as .therein provided, nothing contained in the action shall prevent the party entitled, from maintaining his action at law on the injunction bond.
Let the decree be affirmed.
