Derdeyn v. Donovan

81 Miss. 696 | Miss. | 1902

Whiteield, C. J.,

delivered the opinion of the court.

This case presents a question of fact on conflicting testimony. The rule in such cases is that this court must accept the finding of the chancellor, unless it is clearly and manifestly wrong. We are not able to say that the finding of fact by the chancellor is manifestly wrong, and the decree is

Affirmed.

ON SUGGESTION OE ERROR.

Fra/nJt Johnston, for appellant, filed a lengthy suggestion of error, reviewing the evidence and making the following points:

It was error for the chancellor to award damages on the injunction bond in the interlocutory decree dissolving the injunction. This doctrine of equity practice was expressly announced in the case of Adams v. Ball (Miss.), 5 So. Rep., 109. In that case there was an injunction restraining.a suit at law, and a mandatory injunction or order commanding the delivery up of certain personal property. This was set aside and abrogated, and in the interlocutory decree damages on the injunction bond were awarded by the chancellor. The per curiam opinion in that case reversed that decree “because the whole matter should stand over for the final decree.” In that opinion the court cited Penny v. Holberg, 53 Miss., 567.

This is the universal rule or practice or doctrine on the subject. High on Injunctions, sec. 1649; Gray v. Veirs, 33 Md., 159. Penny v. Holberg and Gray v. Veirs are both cited by High in his work on Injunctions in support of this rule.

If no action can be had on an injunction bond until after the final disposition of the equity cause in which the writ was issued and the bond taken, it follows that the equity court could not give a decree for damages on the bond until the final determination of the cause.

Whitfield, C. J.,

delivered the opinion of the court on the suggestion of error.

The cases cited in support of the suggestion of error all fall properly within Adams v. Ball (Miss.), 5 So. Rep., 109; Gray v. Veirs, 33 Md., 159; and they are cases in which the bill was filed on independent grounds of equitable cognizance, and not merely and solely for an injunction, and in which, consequently, the dissolution of the injunction did not dispose of the case, but left the case to be tried on its merits on final hearing on the said independent grounds. The principal is clearly put in the case of Gray v. Veirs, as follows: ‘ ‘ This is a suit upon an injunction bond, and the plaintiff, in his declaration, avers that the order below dissolving the injunction was affirmed by this court upon appeal, and the cause remanded to the circuit court of Montgomery county for further proceedings. No case was cited in support of the argument, nor have we been able to find one in which a suit has been maintained upon an injunction bond until after the final termination of the cause. If the injunction was dissolved upon bill and answer, and the cause remanded, the complainant has a right to proceed with his case, because he may overcome the denials in the answer by proof, and the court may be of opinion upon final hearing that the injunction ought to be reinstated and made perpetual. Now, if the position of the appellant be correct, he would be entitled to recover damages and costs for a breach upon the injunction bond pending the equity case, although it may appear by the proof and subsequent proceeding that the complainant was entitled to the relief prayed. Such cannot be the law. ’ ’ The distinction is between those cases in which the bill is filed solely for an injunction, and in which, of course, the dissolution of the injunction carries with it the dismissal of the bill, and those very different cases in which an injunction is asked for as a mere auxiliary or aid in effectuating the principal relief, resting upon distinct equitable grounds. In this last class of cases the bill is, of course, retained until final hearing; and it is the better practice, as a rule, not to dissolve such an injunction until final hearing, for the obvious reason that if it were dissolved and the damages allowed, proof subsequently taken might make it proper to reinstate the injunction and require the damages refunded. In this case the dissolution of the injunction ended the whole matter. The equities of the bill, as to the conveyance being a valid conveyance, are all sworn away by the answer, and the rule in such case is stated thus in vol. 10, Ency. Pl. & Pr., 1048: “As a general rule, upon the coming in of an answer denying the equities of a bill, the defendant is entitled to have the injunction dissolved.” The bill here was for injunction only. When the injunction was dissolved, the court dismissed the bill, the case was at an end, and it was entirely proper to allow the damages. The only question litigated, or left to be litigated — the equities of the bill being sworn away by the answer — was whether the property was a homestead, and what its value was.

We have given this suggestion of error the most careful consideration, and are entirely unable to see any reason for disturbing our former judgment.

Overruled.