106 So. 514 | Miss. | 1925
Lead Opinion
This is an appeal from a decree sustaining a demurrer to a bill. The bill alleges ownership in the appellant of a large body of land lying in a bend of the Mississippi river, the title to a portion thereof being traced from one source, and to the other from another source, a portion of the land is alleged to be claimed by Mrs. Hamer, another portion by Hankinson, and the remainder of the land by both. The prayer of the bill is for the correction of a deed to part of the land executed to the complainant by Mrs. Hamer; for a cancellation of the claims to the land both of Mrs. Hamer and Hankinson; for an injunction against Hankinson restraining him from cutting timber from the land, which the bill alleges he has and will continue to cut therefrom; and for an accounting by Hankinson for the timber which he is alleged to have cut and removed from the land.
The grounds of the demurrer are that the bill presents no right in the complainant for the relief sought, and that the bill is multifarious. There is no merit in either of these contentions. The allegations of the bill clearly present a case for the relief prayed for, and the bill is not multifarious for the reason that the alleged claims of the defendants overlap as to a part of the land, and the title which the complainant asserts thereto against each of them is derived from the same source. *285
To hold the bill multifarious would force the appellant, in order to recover, to split his cause of action against one or both of the appellees, and this he is not required to do.
Reversed and remanded.
Addendum
First. The following statement in the opinion is inaccurate: "For an injunction against Hankinson restraining him from cutting timber from the land, which the bill alleges he has and will continue to cut therefrom."
This statement in the former opinion refers to the prayer of the bill, and the exact prayer of the bill in this particular is as follows:
"The premises considered, complainant prays as follows: (a) That this court grant complainant a peremptory injunction enjoining the defendant W.S. Hankinson himself, and his agents and his employees, either, any or all of them, from cutting roadways or using roadways, from cutting or opening the fence, or enclosure of complainant, in, through or across the lands of complainant lying west and south of the alleged Hankinson line alleged and claimed by the defendant W.S. Hankinson."
The chancellor granted the fiat for the temporary injunction as prayed for.
It is clear to us that the object sought to be attained by the injunction was the cutting of timber; for, if the roadways and fence were closed against the defendant, *286 obviously they could not reach the timber. The reference in the original bill to this, we think, should be set out here in order that it may be clearly seen just what the court had in mind at the time the original opinion was written:
"Complainant charges that the timber on the aforesaid lands, for the most part, is young and growing timber, and is not of the dimensions that would warrant the same in being cut now, under the well known rules of good forestry; that the cutting of said timber and removing the same from complainant's lands by the said defendant W.S. Hankinson under his alleged claim of title to a portion of said lands will and does amount to a sacrifice of said timber by the cutting of it while too young and while of under dimensions; that no action for damages for the cutting of said timber will be adequate, as such cutting by said defendant Hankinson is ruinous to said young timber, and is causing to complainant irreparable damages for that reason."
We now quote from the ninth paragraph of the original bill:
"Complainant further charges that, in order to protect his lands and timber aforesaid, he went to the expense, trouble, and caution to fence in said land and timber from river to river, thus completely enclosing the same with said fences, and that, notwithstanding that fact, the defendant W.S. Hankinson and his agents and his employees have disregarded said fences and gone through same for the purpose of cutting, hauling, and removing said timber from said disputed lands as aforesaid."
The amended bill and prayer thereto contain substantially the same allegations, but both convey the idea that the protection of the timber from devastation was the idea dominant in these allegations. And so we cheerfully amend the opinion so that the reference to timber is eliminated, and reference here now is made to cutting roadways or using roadways, or cutting or opening *287 the fence across the lands of the complainant, which does not in any way affect the conclusion reached by us in the former opinion after due deliberation and a fair consideration of the entire record.
Second. In the former opinion we made no reference to the dissolution of the injunction by the court below in the final decree sustaining the demurrer. We thought and still think, the chancellor was in error in sustaining the demurrer to the bill. We thought then, and still think, that the demurrer should have been overruled and the cause should have been reversed and remanded. But from the quotations above it is clear that the complainant did not allege that he had reason to believe that the use of the roadways or cutting of the fence would be continued, or that there was threatened danger of those acts sought to be enjoined being repeated. So that we have the case of an injunction being granted to prohibit a completed act. There is no allegation that there is a threat or actual danger of the act being repeated. We think this is fatal, and that the injunction was properly dissolved by the court below.
"Injury Wholly Past. Since equity will not attempt to do a vain thing it will not by injunction attempt to prevent an injury that has already been sustained or to prevent the doing of an act that has already been performed, especially where there is no showing that such action is being continued or repeated, or that defendant is threating or intending to repeat the injury. The party injured is of necessity remitted to his remedy at law to recover damages, not because it is adequate, but because no other remedy is possible." 22 Cyc. 759.
We amend the former opinion, and affirm that part of the decree in the court below which dissolved the injunction.
Third. It is vigorously insisted by counsel for appellee that he is entitled to have the judgment of the court below affirmed, wherein a fee to complainant of six hundred dollars was allowed for the dissolution of the injunction. *288 Under the repeated holdings of this court, the solicitor's fee, if allowed to a complainant as damages, is for services rendered in and about the specific act of dissolving the injunction, and the fee is not allowed when the case is tried on its merits and upon that trial it ultimates as a part of the final decree that the injunction is dissolved. It is obviously quite a different matter to appear in court as solicitor and procure the dissolution of an injunction and to appear in court on the final trial of the whole case when the case is at issue, tried and decided upon its merits, and incidentally on its final hearing the injunction is dissolved.
In this case there was no special hearing of the motion to dissolve the injunction, but said motion trailed the final hearing on the demurrer, and the order dissolving the injunction and allowing six hundred dollars solicitor's fee is a part and parcel of the final decree rendered by the court sustaining the demurrer and dismissing the bill.
In this case the chancellor erred in allowing the solicitor's fee for the dissolution of the injunction, for all the solicitor did in procuring the dissolution of injunction was necessarily a part of the defense of the suit, save the mere writing of the motion to dissolve; and the decree of the court below is reversed as to the solicitor's fee allowed to complainant.
We again announce the rule hitherto announced, that no solicitor's fees are properly allowed to the defendant for a dissolution of the injunction when the dissolution of the injunction is incident to and a component part of the decree upon a final hearing of the cause. And no fee under our statute is allowed to defendant to be paid by the complainant for defending the suit. Jamison v. Dulaney,
This cause will be affirmed only as to the dissolution of the injunction; and as to the award of a solicitor's fee the decree of the court below will be reversed and judgment here disallowing the solicitor's fee; and upon the demurrer to the bill the decree of the court below sustaining the demurrer is reversed and remanded, and the defendants are allowed thirty days in which to file their answers to the amended bill herein.
Sustained in part, and overruled in part.
