54 So. 852 | Miss. | 1910
delivered the opinion of the court:
On the 15th day of December, 1909, the Vicksburg Waterworks Company applied for and obtained an injunction against the city of Vicksburg, enjoining the city from opening the fire hydrants located in the city and belonging to the waterworks company, and from taking therefrom water for the purpose of cleaning and flushing the new sanitary sewers then being installed in the city. At the time the injunction was issued the waterworks company executed an injunction bond in the sum of one thousand dollars, with the Empire State Security Company as security thereon; the condition of same being: “In case the said injunction shall be dissolved, shall within thirty days thereafter well and truly pay and satisfy all such costs and damages as shall wrongfully result from suing out this injunction, and shall abide by and perform the decree of said chancery court, then this obligation shall be void; otherwise the same shall remain in full force and virtue.” In due time an answer was filed on the 31st day of December, 1909, a motion was made to dissolve the injunction, and accompanying the motion notice was filed that three thousand and five hundred dollars damages would be claimed for the wrongful suing out of the injunction. On the 21st day of March, 1910, the motion to dissolve the injunction was heard, and the court decreed that the injunction stand dissolved, and made this further order, viz.: “It is
It appears from the proceedings set out above that, although the injunction had been dissolved, the bill had not been dismissed, nor had the court undertaken to allow damages on the bond at the time the decree dissolving the injunction was made, as was done in the
The appellants asked for and were refused a request for a peremptory instruction. The errors assigned in this court are, first, that the court erred in overruling the demurrer; second, that the court erred in holding that the suit on the injunction bond could be maintained before final decree dissolving the injunction; and third, that the court erred in refusing a peremptory instruction for defendant. There are other errors assigned, but the whole of this case is comprehended under the above assignments of error.
The first contention of counsel for appellants that we- will notice is the contention that, because the city had regularly employed counsel on a salary, it could not employ any additional counsel to assist in this cause, so as to make the bond liable for such -counsel fees. In support of this contention the case of Nixon v. Biloxi, 76 Miss. 810, 25 South. 664, is cited, as also other authorities which we shall advert to later. A city has the same power to protect its civil rights that an individual has. A city may make a valid contract to employ associate counsel to assist its regularly retained counsel, in any case where in, the wisdom of its authorities it deems it necessary. Individuals do this, and we can see no reason why a city may not do the same thing. In cases of sufficient gravity different firms of lawyers are employed in the same case and to represent the same cause;
We can perceive no good reason why it should be held that either a county or a municipality must in all cases rely for its prosecution or defense on its retained counsel, and not be allowed to employ associate counsel when in their judgment the necessity arises. If they can employ such additional counsel in any case, they may do so. in an injunction suit, as well as in any other, and the injunction bond can be made to respond in damages to any reasonable amount necessary to compensate the additional counsel so employed. An inspection of this record convinces us that the city of Vicksburg had employed associate counsel under a valid contract, and that under
In setting out the appellant’s assignments of error in a former part of this opinion, it will be noted that one of the arguments made here is that the court below erred in overruling the demurrer to the declaration. Appellee insists that this argument cannot be insisted upon in this court, because it is claimed that any right to object to the judgment of the court was waived by appellants when they pleaded to the declaration after the demurrer was overruled. Appellee says: “When a demurrer to a declaration is overruled, two courses are open to the defendant. He can either stand on his demurrer, and let judgment be entered in favor of the plaintiff, and rely upon reversing the judgment on appeal, or he can plead to the merits, in which case he can usually present the same questions by plea which were decided adversely to him on demurrer. Should he pursue this course, he cannot assign as error in the appellate court the action of the trial court in overruling his demurrer. By pleading over he is held to have waived his demurrer, and can only complain of errors committed in the determination of the issues presented by his pleas.” Again, counsel .for appellee state that “it is contended by appellants that the present action, having been brought, as is claimed, before the rendition of a final decree in the chancery cause, was premature.”
It appears from the record that the injunction suit was tried bn a mere motion to dissolve the injunction. The cause was not set down for final hearing and the decree of the court extended only to a dissolution of the injunction, and did not attempt to make any final disposition of the cause. Counsel for appellee makes no contention that there was any final judgment dismissing the bill. Section 621 of the Code of Í906 provides that “when, on motion, an injunction shall be wholly dissolved, the bill of complaint shall be dismissed of course with costs, unless sufficient cause be- shown against its dismission at the next succeeding term of the court.” This statute has been practically the same since the Code of 1857. See Code of 1857, art. 69, p. 551. In the case of Pickle v. Holland, 24 Miss. 566, this court held that an order dissolving an injunction on motion for that purpose did not of itself dismiss the bill. It might be argued, with some force, that since the only relief sought
In the case of Penny v. Holberg, 53 Miss. 567, this court held: ‘ ‘It is undoubtedly true, as insisted by counsel for the appellee, that a suit 'may be maintained, upou a partial dissolution of an injunction for the recovery of such damages as were sustained by reason of its being' sued out, to the extent that the same was wrongful, but that this cannot be done until there has been a final disposition of the suit in which the bond was given. Nor will it make any difference that the order of dissolution has been appealed from and affirmed, if the case has by the appellate court been remanded for further proceedings. The reason of this is obvious. So long as the suit remains in court undetermined, it is always possible, however improbable, that cause may be shown to reinstate and render perpetual the injunction in whole; and the lower court would not be deprived of the power to do this in a proper case, by the affirmance here of the partial dissolution. It follows, therefore, that, until there has been a final determination of the suit in which the injunction bond was executed, no action at law can be maintained upon it. High on Injunctions, § 981; Gray v. Veirs, 33 Md. 159; Hanserd v. Gray, 46 Miss. 75.”
In the case of Goodbar & Co. v. Dunn, 61 Miss. 624, it was argued that the rule announced in Penny v. Holberg, 53 Miss. 567, was abrogated by the adoption of see
The rule announced in Penny v. Holberg, 53 Miss. 567, is again redeclared in Railroad v. Adams, 78 Miss. 977, 30 South. 44, and in addition to redeclaring this rule the court says: “As we have seen, the right of the plaintiff to sue in this case is dependent upon the final determination of the suit in which the bond is given, . . . and it follows that at the time this suit was instituted no cause of action existed upon the bonds” — it appearing in the above case that no final judgment or dismissal had been rendered. We thus see that we have a declaration of this court that until final judgment there is no cause of action, and this is as it should be, since until final dismissal the bill is subject to amendment, and a case warranting the injunction may be stated.
It is conceded by appellee that if the declaration is so defective as that it fails to state a cause of action, a demurrer to the declaration is not waived, where there is a judgment overruling same, followed by pleading to the merits, and this is but a concession of what all the authorities hold. Teal v. Walker, 111 U. S. 242, 4 Sup. Ct. 420, 28 L. Ed. 415, 31 Cyc. 746. In the case of Southern Ry. Co. v. Grace, 95 Miss. 611, 49 South. 835, this court, speaking through Justice Smith, said: “Where a declaration fails to state a cause of action, as in the case at bar, the defect may be raised by general demurrer, the ground of which is never waived. It can be raised át any time and at any place. ” We do not think it neces