Hale v. Bozeman

60 Miss. 965

• Court: Mississippi Supreme Court
• Decided: April 15, 1883
• Status: Published

Opinion

Cooper, J.,

delivered the opinion of the court.

The appellee admits that a part of the sum for which the judgment was entered is justly due, and this amount he is not equitably entitled to restrain the appellant from collecting. It was error to perpetuate the injunction as to the whole debt. McReynolds v. Harshaw, 2 Ired. Eq. 29; Lewis v. Smith, 7 Beav. 470 ; Rodaban v. Driver, 23 Geo. 352 ; Welch v. Parran, 2 Gill, 320.

It is by no means clear on the record as it now appears, that the appellee is not indebted to the appellant in the full sum for which judgment was rendered. At most, the appellant should be required to retry his right to the amount in excess of that admitted to be due by the appellee, and the injunction should be retained until the result is known. For any sum found due on such trial, the injunction-bond should stand as security to the appellant. The cause being now in chancery, we think the better practice is for that court to try the issue of the amount of the debt, and make a final disposition of the cause.

The decree is reversed and cause remanded.