Steadman v. Butler

49 So. 614 | Miss. | 1909

Mates, J.,

delivered the opinion of the court.

The object of this suit was to enjoin the enforcement of a judgment. An application was made for an injunction, and a temporary writ duly issued by the chancellor, and bond given as required by law. Subsequently a motion was made to dissolve the injunction, and sustained by the chartcellor, whereupon the following decree was entered, viz.: “This cause having been set’down for hearing this day in vacation on bill, demurrer, and motion to dissolve the injunction, the court, having duly heard and considered the same in vacation at the time and place designated in the notice given the complainants by defendants in the manner required by law of their intention to make said motion, is of the opinion that said motion ought to be sustained. It is therefore ordered, adjudged, and decreed that the injunction sued out by complainants in this case be and the same is hereby dissolved. It is further ordered that the defendant herein, Ike Butler, do have and recover of and from the complainants herein and the surety on their injunction bond, the United States Fidelity & Guaranty Company, the sum of $343.35, being the amount of the judgment enjoined, with costs and 5 per cent damages thereon, as prescribed by statute, and also recover all costs. Upon proof, it is ordered that the defendant also recover of and from the complainants and the said surety upon their injunction bond the sum of $100 as a reasonable attorney’s fee for services of his attorney in this behalf, for which execution may issue as aforesaid.”

In so far as the decree rendered a judgment on the bond for attorney’s fees, we think the action of the court was correct, and it is also our view that the decree dissolving the injunction was correct; but the chancellor should not have extended his decree further and rendered judgment on the bond. The effect of so doing is to have two judgments in full force and effect against complainants — one in the chancery court on the bond, and the original judgment in the circuit court, the complication which it is the very design, of section 622, Code 1906, to avoid. On dissolving the injunction the decree of the chancellor should have been limited merely to a decree dissolving the injunction and rendering such judgment on the bond as defendants were entitled to as damages for the improper suing out of the injunction, and should not have extended further. What shall be subsequently done is expressly declared by section 622, Code 1906, and only the method there outlined can be pursued in order to create liability on the bond and enforce collection on same. By this section, when an injunction is sought to enjoin proceedings at law on a judgment for money, and the injunction is dissolved, the decree of dissolution itself has the force and effect of a judgment against the obligors in the bond, and, when it is certified by the clerk of the court in which it is filed to the clerk of the court in which judgment is rendered, execution may be issued against the obligors for the amount of the judgment enjoined. This is the statute, and the statute must be followed to the exclusion of all other remedies.

' The cause is affirmed, in so far as the judgment for $100 is concerned and in so far as the dissolution of the injunction was ordered, but reversed as to that part of the decree which renders judgment on the bond for the debt sought to be enjoined. We do not think counsel for appellees are entitled to any additional fees, and direct cost of appeal to be taxed against appellees.

So ordered.