Johnson v. Howard

141 So. 573, 167 Miss. 475, 1932 Miss. LEXIS 194

• Court: Mississippi Supreme Court
• Decided: May 9, 1932
• Docket: No. 29620.
• Status: Published

Opinions

Anderson, J.,

delivered the opinion of the court.

This is an appeal from the chancery court of Warren county awarding appellees damages in the sum of one thousand seven hundred fifty-eight dollars and thirty-seven cents for the wrongful issuance of an injunction in a cause between the same parties styled Howard et al. v. Sheldon et al., which originated in the chancery court of Forrest county and. came up to the supreme court, and an attorney’s fee in the sum of seven thousand five hundred dollars for the services of the appellees’ attorneys in the dissolution of the injunction in said, cause. The decision of the supreme court in that cause is reported in 151 Miss. 284, 117 So. 839. The record in that case is part of the record in this case. The hearing in the present case was on bill, answer, and proofs, resulting in a final decree for the sums above stated.

Appellants were complainants in the injunction suit in Forrest county, and appellees were the defendants therein. Appellants are members of the republican party of this state, and appellees were at the time of the suing out of the injunction and the final disposition of that cause members of the various executive committees, state, district, county, etc., of the republican party in this state.

Chapter 149 of the Code of 1930, sections 5864 to 5910, inclusive, regulates the calling and holding of all state and county conventions by political parties for the purpose of selecting executive committeemen, presidential electors, and delegates to the national party conventions. The county conventions are composed of delegates elected thereto from each supervisor’s district of the county, and the state convention is composed of delegates elected .by the county conventions.

Appellees, who were members of the state republican executive committee, fixed the day for the holding of the state and county conventions for the election of delegates to the state convention so that the state convention nrght meet early enough to select delegates to the national convention, which was to meet at Kansas City on June 12, 1928. Thereupon appellants exhibited their bill setting forth that the state executive committee had violated the primary election laws in several particulars in providing for the county and state conventions, and praying for an injunction against the holding of the conventions, and the elections at which the delegates to the county conventions were to be selected. Appellants executed an injunction bond in the sum of ten thousand dollars payable to appellees, conditioned according to law. An injunction was issued restraining appellees from proceeding with the selection of delegates to the various conventions of the state. Appellees demurred to the bill and made a motion to dissolve the temporary injunction, both were overruled, and appellees were granted an "appeal to the supreme court to settle the principles of the cause. The supreme court held (151 Miss. 284, 117 So. 839) that no jurisdiction had been conferred by statute upon the courts of this state to interfere with or regulate the holding of primary elections and conventions of political parties, and that the chancery court was without jurisdiction to enjoin the holding of party conventions and elections at which delegates to county conventions were to be selected, on the ground that the state executive committee had violated the primary election laws. The decree of the court below overruling the demurrer to the bill and declining to dissolve the injunction was reversed, and the cause remanded, the court stating in its opinion that the injunction should be dissolved. When the cause went back to the chancery court of Forrest county, a final decree was entered dismissing appellants’ bill and dissolving the injunction. The bill, however, was dismissed without prejudice to appellees’ claim of damages for the wrongful suing out of the injunction.

After the rendition of that decree appellees brought this suit on the injunction bond in the chancery court of Warren county against appellants and the sureties on their bond to recover the damages claimed to have been suffered by them in the way of expenses and solicitors’ fees caused by the wrongful issuance of the injunction. As stated, the court awarded appellees damages in the sum of one thousand seven hundred fifty-eight dollars and thirty-seven cents claimed to have been expended by them as the result of the wrongful issuance of the injunction, and seven thousand five hundred dollars solicitors’ fees incurred by them for the services of their solicitors in representing them in having the injunction dissolved.

The evidence in this case shows that appellees were violating the primary election laws of this" state when they were enjoined; for that reason appellants contend that there was no liability on the injunction bond. They state their position in this language: “The appellees had no vested right to do that which they were restrained from doing. Upon the other hand, they were enjoined from violating the law, therefore, cannot recover damages. The appellees were not damaged, in that they were only restrained from proceeding in an unlawful manner complained of in the original bill of complaint, and upon the issuance of the injunction, changed their procedure to conform to the requirements of the statutes pointed out in the original bill of complaint; and in that the injunction was nullity ab initio. ’ ’

Section 417, Code of 1930, is in this language: “Where the injunction shall not be for the stay of proceedings in an action at law for the recovery of money, or upon a judgment requiring the payment of money, the party applying for the injunction shall, before the issuance of the same, enter into bond in like manner, in a sufficient pénálty, to be fixed by the judge granting the same, condltiohed for the payment of all damages and costs which may be awarded against him, or which the opposite party may suffer or sustain by reason of the suing out of said injunction, in case the same shall be dissolved.” Section 432 of the Code of 1930 provides that damages on an injunction bond where the injunction has been dissolved shall Je allowed where the injunction is to stay proceedings on a judgment at law for money, or to stay a sale under a deed of trust or mortgage with power of sale, and concludes with this language: “And in all cases upon the dissolution of an injunction the damages may be ascertained by the court or chancellor, or upon reference to a master, and proof, if necessary, and decree therefor be made, and execution be issued thereon.” The next section, 433 of the Code of 1930, provides, among other things, that on the dissolution of an injunction the party claiming damages may do so in the cause in which the injunction was issued, or he may bring an independent suit on the injunction bond.

As we understand the decisions of our court this question has long since been determined against the appellants’ contention. “The dismissal of a bill whether by the court or by the complainant operates as a dissolution of any injunction issued thereunder and establishes the fact that it was wrongfully sited out, and that the defendant is entitled to recover whatever damages he sustained by the issuing of same.” (Italics ours.) Griffith’s Chancery Practice, section 463. We think the principle laid down by the author-of that work is fully justified by the decisions of our court. Yale v. Baum, 70 Miss. 225, 11 So. 879; Somerville v. Mayes, 54 Miss. 31; Alexander v. Woods, 115 Miss. 164, 75 So. 772; Marshall v. Minter, 43 Miss. 666; Harrison v. Balfour, 5 Smedes & M. 301.

Yale v. Baum appears to be more directly in point on its facts than any of the other cases referred to. That was a case of this character. Yale and Bowling sued out an attachment against Solomon & Co. which was levied on certain goods. Baum & Co. claimed to have purchased the goods and obtained an injunction restraining the plaintiffs from subjecting them to their attachment. On the hearing of the injunction suit a decree was entered dismissing the bill “without prejudice to either party.” Thereupon Yale and Bowling sued Baum & Co. and the sureties on their injunction bond to recover damages for the wrongful suing out of the injunction. The plaintiffs at the trial offered in evidence the bond and proceedings in the injunction suit, including the decree of dismissal and other evidence in support of their demand. The defendants contended that, inasmuch as the decree of dismissal was without prejudice, they were not precluded from showing that the goods were not liable to plaintiffs’ attachment, and therefore there was no liability on the injunction bond. In other words, the defendants offered to show that the goods belonged to them and were not subject to the attachment. Although not set out in the statement of the case, the in junction must have been dissolved, because it is apparent that the complainants had a complete remedy at law, namely, by claimants’ issue in the attachment suit. This was a case, therefore, where the defendant in the suit on the injunction bond undertook to show that no legal right of the plaintiffs in the attachment suit had been invaded by the issuance of the injunction. The court disposed of the question in a very short opinion in this language: “The dismissal of the suit, by the chancery court, of Baum & Co. against the appellants and others, though made without prejudice, operated as a dissolution of the injunction and entitled the obligees in the injunction bond to sue for its breach. It is too late for the appellees to say that the injunction was rightly sued out. That it was not is conclusively settled by the decree dissolving it.” (Italics ours.)

In Somerville v. Mayes, supra, the court held that the right to recover on an injunction bond was “coextensive with its condition, and resort must be had to its terms in determining the rights and liabilities of par.ties to it. The obligors have a right to stand on its terms. So has the obligee. . . . The dissolution of the injunction is the contingency on which liability to pay was stipulated to arise. The condition was broken when the injunction was dissolved, and the right of action on the bond was then complete. . .- . This is a just result, of which the obligors' cannot properly complain. It not only flows from their express stipulation by the bond, but it comes within their expectation when they executed it. ’ ’

In Alexander v. Woods, supra, the court said: “The dismissal of the bill in the chancery court operated as a dissolution of the injunction and established the fact that it had been wrongfully sued out, and that the appellants here are entitled to recover ivhatever damages they sustained by the issuing of same.” (Italics ours.)

In Marshall v. Minter, supra, the court held that equity will regard a party applying for an injunction to restrain the execution of legal process as proposing or consenting that, if such injunction he wrongfully obtained, or the relief asked shall be refused, the party so applying will put his adversary in the same position he was at the time the injunction was granted.

32 C. J., p. 452, section 782, states the principle in this language: “In an action on an injunction bond to recover the damages provided for thereby, the decision of the court dissolving the injunction that the same was improperly granted is conclusive of that fact, in the absence of fraud and collusion, and (defendant in the action on the bond is not at liberty to go behind the judgment and litigate the question of the right to the injunction.” (Italics ours.)

The result is the same where the injunction proceeding is void for want of jurisdiction of the court to entertain it. Where a complainant has secured an injunction and stayed his adversary’s proceedings, and thereby caused him to suffer damages, it is too late for the complainant to set up as a defense in an action on the injunction bond a want of jurisdiction in the court to grant the injunction. He is estopped to say that the court granted the injunction without jurisdiction. It does not lie in the mouth of one who has affirmed the jurisdiction of a court to grant an injunction, where he has accomplished his purpose by the injunction, to afterwards deny such jurisdiction. 32 C. J., p. 453, section 783, and footnote.

It is sometimes a close question whether a court has jurisdiction to grant an injunction in a particular character of case. Tlse supreme court of Texas and the courts of several other states have held that, since political party primary elections and conventions have been provided for by law, the members of a party are given rights which entitled them to resort to the .courts for their enforcement. Although our court had held to the' contrary, appellants (appellees in the injunction suit) did not so understand our decisions, and in good faith undertook to show the court that those decisions were not appli cable. Appellants’ contention means that in every injunction case, however close the question of the jurisdiction of the court to grant the injunction might be, if it turned out that the court was without jurisdiction, there would be no liability on the injunction bond.

For like reasons we cannot give our assent to appellants’ contention that there is no liability on an injunction bond unless some right of the defendant has been invaded by the issuance of the injunction. In many cases it is an exceedingly close question whether or not by the issuance of an injunction any justiciable right of the defendant has been invaded. Take for illustration a case of this kind: Both A and B claim title to a body of unoccupied timbered land, each claims the land in perfect good faith; B is denuding the land of its merchantable timber and selling it, refusing to recognize A’s claim of title; A submits his case to a competent lawyer who advises him that in his judgment he has a good title to the land; A files a bill in the chancery court deraigning his title to the land and charging that B, without any title and without any authority of law, is cutting and removing the merchantable timber from the land, and prays that his title be established by the court and, pending the litigation, and injunction issue restraining B from further committing waste on the land. A gives the required injunction bond, and an injunction is issued and served on B. B consults a competent lawyer who, after a thorough investigation and consideration, advises B that he has a perfect title to the land, and A has no title. B defends the suit. It develops-on the trial that, although the best legal minds might differ on the question, neither A nor B has any title to the land, but that it belongs to C. Beaching that conclusion the court dismisses A’s bill, which operates as a dissolution of the injunction. If appellants are right in their contention, there would be • no breach of the injunction bond, and therefore no liability on it because by the issuance and service of the injunction no right of B’s was invaded. By his injunction bond the complainant guarantees that some right of his, recognized by law, has been invaded by the defendant, and if he fails to establish that fact the bond is breached. Furthermore, if liability on the injunction bond depended on whether or not the defendant’s rights were invaded by the injunction, we think the fact that the defendant was driven to run the risk of the costs of the cause and the incurring of counsel’s fees for defending it would constitute an invasion of his rights.

Appellants contend that Lowenburg v. Klein, 125 Miss. 284, 87 So. 653, is in point in their favor. We do not think it is. It was held in that case that, when an action is based ón a contract made in violation of the criminal laws of the state, and the parties to the action are in pari delicto, the courts will not entertain a suit for relief of either against the other, but will leave them as they are found; and, in an injunction suit based upon such a contract, attorney’s fees should not be allowed to the defendant upon the dissolution of the injunction. The question involved in that case is a very different one from that here involved. The contract in that case was made in violation of both the criminal laws of the federal and the state governments, and both parties to the contract were equally in the wrong. It is an elementary principle that in such a case the whole subject-matter of the litigation is outlawed, the courts refuse to deal with it at the instance of either party, they wash their hands of the whole matter. It is apparent at once that the present' case is entirely outside of any such principle as that. There are some authorities from other states cited in appellants’ brief that seem to sustain their position, but we think, and have undertaken to show, that the better reasoning is to the contrary.

Appellees filed an amended bill in this case, by which they made themselves individually and personally complainants in the bill. Appellants contend that appellees had no right to sue either in their official capacities or as individuals; that they were not enjoined individually but officially, and, if they had any right of action at all, it was to recover such amount as they personally lost as emoluments of their offices by reason of the service of the injunction. By the original bill in the injunction suit appellants sought to enjoin appellees from action both in their official and individual capacities. The republican party in this state is an unincorporated voluntary society. Under the law such a society cannot contract and be contracted with and sue and be sued, but the officers of such a society acting for and on behalf of the society are liable individually. Evans v. Lilly & Co., 95 Miss. 58, 48 So. 612, 21 Ann. Cas. 1087; Alkahest Lyceum System v. Featherstone, 113 Miss. 226, 74 So. 151; Victor v. Adams, 140 Miss. 643, 106 So. 433. Therefore, when appellees employed counsel to represent them in the injunction suit they became personally liable to pay for the services of their counsel, and not in their capacities as officers of the republican party, and the same is true of any outlay of expenses incurred by them as the result of the issuance of the injunction. The damages suffered by appellees on account of the issuance of the injunction was personal damage and not a damage to them in their official capacities. Under the law the injunction could operate on them only as individuals. It could not operate on the republican party for which they were acting. We are of opinion, therefore, that appellees are entitled to recover as individuals whatever damages they suffered on account of the issuance of the injunctions.

The chancellor awarded appellees the sum of seven thousand five hundred dollars for the services of their attorneys in procuring the dissolution of the injunction. Appellants contend that the fee allowed was unreasonable and exorbitant. Six members of the bar testified giving their opinions as to what they thought would be a reasonable fee. Their testimony took rather a wide range. Five of them testified that in their opinion a fee of from seven thousand five hundred to ten thousand dollars would he reasonable. One testified that in his opinion a fee from seven hundred fifty dollars to one thousand dollars would be reasonable. In determining this question we have taken into consideration the principles laid down by this court in Moss v. Miss. Sanitary Board, 154 Miss. 765, 122 So. 776, and New Orleans, M. & C. R. R. Co. v. Martin, 105 Miss. 230, 62 So. 228, namely, the importance of the litigation, the magnitude of the interests involved, the labor and responsibility of counsel, and the judgment of the chancellor fixing the fee. We have also taken into consideration the well-established rule that such opinion evidence of members of the bar is admissible, but is not conclusive on the court. Humphreys County v. Cashin, 128 Miss. 236, 90 So. 888. The court in determining the question has the right to add to the evidence its opinion based on experience and observation. The majority of the court are of opinion that the fee of seven thousand five hundred dollars allowed by the chancellor was exorbitant, and that it ought to be reduced by one-half, making the fee three thousand seven hundred fifty dollars.

We are of opinion that the chancellor erred further in allowing the expenses of one thousand seven hundred fifty-eight dollars and thirty-seven cents, claimed to have been incurred by appellee on account of the issuance of the injunction. Appellees contended and undertook to show that the republican party represented by them was put to that much additional expense on account of the issuance of the injunction. Without deciding whether appellees would be entitled to recover such expenses if properly proven, we have reached the conclusion that the evidence in this case falls short of proving what expenses were incurred by appellees on account of the issuance of the injunction. The evidence is too vague and uncertain in the following respects:. (1) It failed to. show that the expenses claimed were necessary, expenses; (2) it failed to properly allocate the expenses incurred before tbe issuance and service of tbe injunction and the expenses incurred afterwards.

;. The result of these views is: The decree of the chancellor is affirmed in part and reversed in part, and a decree will be entered here in appellees’ favor for the sum of three thousand seven hundred fifty dollars, with interest, the costs of this appeal will be divided equally between the parties.

Reversed in part, and affirmed in part.