Lacey v. NoblinLacey v. Noblin
Aрpellant, Robert H. Lacey, sought by his bill of complaint, in the Chancery Court of Choctaw County, ■to try the right to a public office by a bill for injunction, rather than a quo warranto proceeding. The chancellor sustained a general demurrеr to it.
The defendants, appellees, are Thomas D. Wills and three other Commissioners of the Choctaw County Soil Conservation District, and C. B. Noblin, manager of the project. The bill avers that in 1946 the Winston and Choctaw County Soil Conservation Districts аgreed to cooperate in the operation of certain lands in both counties, and to elect an Exеcutive Committee of three commissioners, rotating the numerical membership from each district. Complainant Laсey, a Commissioner of the Choctaw District, was elected a member of the Executive Committee for three years, but several weeks later, after he began performance of his duties, the remaining commissioners of the Choctаw County District, without any right or authority, attempted to revoke Lacey’s election to the Executive Committee. In cоncert with Noblin, the defendants “have refused to permit the said Robert H. Lacey to perform his duties as such and have attempted, without any authority or right, to substitute Thomas D. Wills as a member of the Executive Committee in the place and steаd of the said Robert H. Lacey. ’ ’ The Choctaw County Commissioners contended the selection of an Executive Committeeman from that county is the function of the Choctaw Commissioners, although Lacey claims he should be elected by the joint boards. As a result of defendants’ actions, “the complainant is being illegally deprived of his rights
The chancellor, after a hearing, ordered a temporary injunction issued, which was done, and required complainant to post $500 bond. Defendants filed a general demurrer, on the ground that cоmplainant had an adequate remedy by quo warranto. The demurrer was sustained and the injunction dissolved. The bill was dismissed without prejudice to complainant’s right to file other proceedings.
The chancery court was correct in sustaining the demurrer. It is well established that a bill for injunction will not lie to try the right and title to a public office, but the proper remedy is by quo warranto. Miss. Code 1942, Secs. 1120-1145; Town of Sumner v. Henderson,
The averments of the bill do not bring appellant within the exception to the rule. Apрellant charges that Wills has been substituted by defendants as a member of the Executive Committee in his place, and he is
Defendants filed a suggestion of damages, for attorney’s fees and expense money of $150 paid to Lacеy as required by the temporary injunction. The final decree awarded Attorney’s fees of $100, and ordered Lacey tо refund to the Districts the $150 of compensation or expense money he drew from the District as a result of the tempоrary injunction. The record does not disclose that any evidence was introduced on the appellees ’ сlaim for damages. As to attorney’s fees, such evidence was not necessary, since the chancellor was fully competent to determine the value of such services. Moss v. Miss. Live Stock Sanitary Board,
However, appellеes offered no evidence as to the amount of compensation or expense money receivеd by appellant while the temporary injunction was in force, and there was no stipulation as to that sum. They should havе moved for permission to offer evidence on those claimed damages. Appellees are not entitled to such damages unless they are proved. Renaldo v. Lamas, supra; Griffith, Miss. Chancery Practice, (2d ed. 1950), Secs. 458-465; 43 C. J. S., Damages, Sec. 300(b). It was therefore error to award damages of $150 to appellees, without evidence in support of it.
Apрellees’ motion for allowance of attorney’s fees on appeal is sustained and they are fixed at $50, whiсh is one-half of the $100 fee allowed by the trial court. Yates v. Summers,
The decree of the chancery court is affirmеd in part, in sustaining the demurrer to the bill and dismissing it, and awarding attorney’s fees. The decree is reversed
Affirmed in part, and reversed in part and remanded on issue of damages for compensation received by appellant under temporary injunction. Motion of appellees for attorney’s fees on appeal sustained.