Mims v. Swindle

87 So. 151 | Miss. | 1920

' Smith; C. J.,

delivered the opinion of the court.

The decree of the court beloAV Avas affirmed by this court on a former day (86 So. 646), and the appellee now by motion requests the allowance of a fee for services rendered by his attorneys, incurred by him in defending the appeal. The original bill in the court beloAV Avas exhibited by the appellant against the appellee, setting forth in substance that the appellant A\Tas in possession of certain land under a valid lease thereto from a former oAvner thereof, from whom the appellee purchased the land Avith notice of the appellant’s lease; that the appellee Avas demanding possession of the land, and was threatening to resort to proceedings at law to evict the appellant therefrom; and prayed that he be enjoined from so doing. The appellee ansAvered this bill, denying the appellant’s right to the possession of the land, setting up his title thereto by a cross-bill, and prayed that the appellant’s claim to possession of the land be canceled, that the appellee be decreed to be entitled to the immediate possession thereof, and that such process as might be necessary to put him in possession be issued.

No attempt Avas made before final hearing to dissolve the preliminary injunction that Avas granted to the appellant on the filing of his bill. The court below on final hearing held that the appellant Avas not entitled to the relief sought by him, but that the appellee was entitled to the cancellation of the appellant’s claim to the land and to the immediate possession thereof. There was a decree accordingly, in Avhicli the injunction theretofore granted wTas dissolved.

The damages to which the appellee is entitled because of the dissolution of the injunction are such only, under section 610, Code of 1906 (section 370, Hemingway’s Code), as he may have sustained “by reason of the suing out of the said injunction.” Such damages include attorney’s fees for procuring a dissolution of the injunction (Baggett v. Beard, 43 Miss. 120; Wynne v. Mason, 72 Miss. 424, 18 So. 422), but do not include attorney’s fees for defending the suit on its merits when the injunction is a mere incident thereto, (Jamison v. Dulaney, 74 Miss. 890, 21 So. 972; Curphy v. Terrell, 89 Miss. 624, 42 So. 235), or for obtaining affirmative relief therein by means of a cross-bill (Valentine v. McGrath, 52 Miss. 112; 2 High on Injunctions, 1630; 14 R. C. L. 486; notes, 16 L. R. A. [N. S.] 71, 33 L. R. A. [N. S.] 845, and 8 Ann. Cas. 715). If the appellee had simply obtained a dissolution of the injunction, so that he might proceed with, his action at law, he would have been entitled to recover a reasonable attorney’s fee therefor; but after the filing of his cross-bill the dissolution of the injunction became- a mere incident to the suit, and really amounted to nothing, for the reason that the relief granted the appellee on his cross-bill was as full and complete as he could have obtained in a court of law. If the case of Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596, is in seeming conflict herewith, it will be sufficient to say that the question here under consideration was not there presented to the court for decision, for it appears from the original record therein that the appellee’s right to attorney’s fees in event the decree of the court below should be affirmed was not contested; the court being simply called on in that event to fix the amount thereof.

Motion overruled.