Yazoo & Mississippi Valley Railroad v. Adams

78 Miss. 977 | Miss. | 1901

Hon. Newnan Cayce, Special Judge,

delivered the opinion of the court.

In .December, 1898, appellants filed their bill, on the equity side of the United States circuit court for the southern district of Mississippi, praying an inj unction restraining appellees from bringing any suit, or taking any steps whatever, for the collection of state, county or municipal taxes for the year 1898, upon the property of appellant. The federal judge granted the restraining order, upon the appellants executing bond in the sum of $500, which was given, R. W. Millsaps and John Hart becoming sureties, on 26th December, 1898.

This bond was conditioned £cto pay all costs of said injunction, and in all other respects discharge and satisfy in full such judgment as the court may pronounce therein, in event said injunction shall be dissolved.”

On February 7, 1899, upon motion of appellees, the restraining order was discharged and dissolved.

On February 9, 1899, an appeal from such order discharging said restraining order, was granted appellants, to the United States circuit court of appeals, bond with supersedeas being given in the sum of $1,200, with John Hart and Samuel S. Carter, sureties. This appeal was dismissed by the United States circuit court of appeals on April 25, 1899.

On the 1st day of May, 1899, on-motion of appellee, the bill of appellants, in the United States circuit court, was dismissed and, on May 3, 1899, appellants prayed and obtained an appeal, to the United States supreme court, from the decree dismissing their bill. The appeal to the United States supreme court was granted, without supersedeas, and an appeal bond given, on the 3d day of May, 1899. No damages were asked or awarded on the dismissal of the bill.

On the 19th day of May, while this appeal to the United Sthates supreme court was pending, the appellees instituted suit in the.first district of Hinds county, Miss., upon the injunction bond against appellants and their sureties, and upon same day instituted suit in the same court, upon the appeal and supersedeas bond against the appellants and their sureties upon that bond. The cases being numbered respectively 3273 and 3275. By consent and request of all parties, the cases were consolidated, the consolidated cause retaining the number 3273. This consolidated cause was tried upon an agreed statement of facts, and judgment rendered thereon by the circuit court of . Hinds county, against appellants and their sureties, for the full penalty of the bonds, respectively. An appeal was taken to this court therefrom. The following points are presented :

T. “Whether, when the bill for injunction was dismissed by the circuit court of the United States on May 1, 1899, the appeal to the United States supreme court therefrom, without, supersedeas, was a bar to these suits upon the injunction and appeal and supersedeas bonds, instituted on May 19, 1899^, the appeal to the United States supreme court being then pending and undetermined.

2. “Gan a suit be maintained in a state court on injunction and supersedeas bonds given in proceedings in the courts of the United States ?

3. “Can damages for loss of interest be recovered on these bonds %

4. “If loss of interest was a proper subject for damages,, could it be recovered in advance of a judgment establishing the liability of the property to taxes ? ’ ’

It appears from the agreed statement of facts herein that at the time these suits were instituted upon the injunction and appeal bonds, an appeal to the supreme court of the United States, in the cause in which they were given, was, pending such appeal to the supreme court of the United States, being taken without supersedeas. Until there has been a final disposition of the suit, in which an injunction bond is given, no action at law upon the bond can .be maintained. Penny v. Holberg, 53 Miss., 568; Goodbar v. Dun, 61 Miss., 624; Cohn v. Lehman, 93 Mo., 574.

Cohn v. Lehman, supra, was similar to the case at bar. That was a suit instituted in the circuit court of the city of St. Louis, to recover the penalty of an injunction bond, executed by the defendants in an equity suit commenced in the United States district court. Upon hearing in the United States district court, the restraining order was dissolved and the bill dismissed. Appeal, without supersedeas, to the supreme court of the United States was taken from this order dismissing the bill, and while such appeal was pending in the supreme court of the United States, suit was brought in the state court upon the injunction bond, which suit upon the injunction bond, being before the supreme court of Missouri upon appeal, that court said: “A final decree was rendered in the district court of the United States dismissing plaintiff’s bill, but, by appeal to the supreme court of the United States, such decree, as well as the whole case, was removed to the supreme court'for review, and its operation as a final decree was suspended, and so remained suspended at the time of the institution of this suit. The statutory supersedeas operates only upon the process of the court; it stays execution, and that is its only office. In all other respects an appeal is as operative without as with a supersedeas. . Rights which do not depend upon the execution of the decree, but depend alone upon the final determination of the issues in the suit, are left in the same condition by appeal without supersedeas as they would be by appeal with supersedeas. And 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 that right is as well suspended by an appeal without as it would be by an appeal with supersedeas. ’ ’

This reasoning is in accord with the views of this court, and it follows that at the time this suit was instituted no cause of action existed upon the bonds, and the suit was prematurely brought. This conclusion being decisive of this cause, it is unnecessary to respond to the other points presented by this record.

The judgment of the lower court is reversed, and the case dismissed without prejudice.