Opinion
No. 27223.
June 11, 1928.
1. INJUNCTION. Defendants, on securing dissolution of injunction involving right to approval of appeal bonds superseding judgments of justice of the peace, were entitled to counsel fees ( Hemingway's Code 1927, section 397).
Where injunction was sought not only for purpose of restraining proceeding on judgments, but also to force justice of the peace to approve appeal bonds which would supersede the judgments and allow a trial de novo in the circuit court, defendants, on dissolution of injunction, were entitled to recover counsel fees, since Code 1906, section 623 (Hemingway's Code 1927, section 397), relative to allowance of damages on dissolving of injunction, applies when only relief sought is to restrain proceedings on judgment at law for money.
2. INJUNCTION. It will be presumed that liability was incurred for services of counsel representing defendants in injunction proceeding.
Where record discloses that counsel appeared and represented defendants at trial of suit to enjoin sale of property under execution, it will be presumed, in absence of evidence to contrary, that liability was incurred for reasonable value of services rendered.
APPEAL from chancery court of Washington county; HON. J.L. WILLIAMS, Chancellor.
J.M. Cashin and Ernest Kellner, Jr., for appellants.
The chancellor was of the opinion that, by virtue of sec. 383, Hem. 1917 Code, he was restricted to an allowance of damages to five per centum of the amount of the judgments. Even if the amount of damages in this case was governed by sec. 383, Hem. 1917 Code, as we shall hereafter show is not the case, still the chancellor was not confined to the five per centum, but could have, and should have, allowed as damages a reasonable attorney's fee, not only for procuring the dissolution of the injunction, but also for services in the county court to which the two cases were improperly removed by the injunction. See Williams v. Bank, 71 Miss. 858, 16 So. 238; Nixon v. Seal, 78 Miss. 363, 29 So. 399. This is one of the exceptional cases referred to in Williams v. Bank, supra. Spivey et al. v. Sol Brill Co. (Miss., 1919), 80 So. 646; Jamison v. Town of Houston et al., 74 Miss. 890, 21 So. 972.
Wynn Hafter, for appellee.
Appellants take the position that the chancellor should have allowed as damages a reasonable attorney's fee for procuring a dissolution of the injunction and rely solely upon three cases. Williams v. Bank, 71 Miss. 858, 16 So. 238; Nixon v. Seal, 78 Miss. 363, 29 So. 399; Spivey et al. v. Brill, 80 So. 646. We have thoroughly digested these cases and the only color of any legal authority in these three cases that might substantiate the theory of appellants is found in the brief of appellants as follows: "The statute, as we have said, was intended to provide fixed damages in those cases in which delay only is the injury sustained, and in such cases the defendant is confined to the damages it provided. Exceptional cases may arise, to which the statute may not apply, and in these the actual damages sustained would be allowed, but in such instances the per centum given by the Code would not be added to the sum awarded as actual damages."
This law as quoted by counsel for appellants is purely dictum of the court and is not the law because this case of Williams v. Bank, specifically reversed the decree of the chancellor, allowing damages in excess of five per centum and we are willing to rest our theory on the law as laid down by this case. Courtney Bros. v. John Deer Plow Co., 122 Miss. 232, 84 So. 185; Smith v. Perkins, 125 Miss. 203, 88 So. 531.
On April 14, 1927, Renaldo and Byrd recovered judgments against Lamas in separate suits before a justice of the peace. The time for an appeal to the circuit court from these judgments having expired, executions were issued thereon, and placed in the hands of the sheriff.
Lamas then sued out an injunction against the sheriff and the justice of the peace, restraining the sheriff from selling his property under the executions, and directing the justice of the peace to approve bonds for an appeal, to the circuit court, executed by him therefor. The ground on which the prayer for the injunction was based is of no consequence, as will hereafter appear, and therefore will not be set forth.
When the cause came on to be heard, the injunction was dissolved, and the suit was dismissed. The appellants filed, with their motion to dissolve the injunction, a claim for the allowance of damages in the form of counsel's fees for the wrongful suing out of the injunction.
The court below declined to allow counsel's fees, but allowed damages, under section 623, Code of 1906 (section 397, Hemingway's 1927 Code) which provides that:
"When an injunction, obtained to stay proceedings on a judgment at law for money, shall be dissolved, in whole or in part, damages at the rate of five per centum shall be added to the judgment enjoined, or to so much thereof as shall be found due, including the costs."
The damages allowed were less than the amount to which the appellants would have been entitled as counsel's fees, and, being dissatisfied therewith, they have brought the case to this court.
This statute applies when the only relief sought by the injunction is to restrain proceedings on a judgment at law for money. But such is not the case here. Restraining proceedings on the judgments was a mere incident to the purpose which the appellees sought to accomplish by the injunction, which was to force the justice of the peace to approve appeal bonds which would supersede the judgments, and allow the appellees to have the cases in which the judgments were rendered tried de novo in the circuit court. The appellants were therefore entitled to recover counsel's fees.
The record does not disclose that any evidence was introduced on the appellants' claim for damages; and they are, of course, not entitled thereto unless damages have been, in fact, sustained by them. The record does disclose, however, that counsel appeared and represented the appellants at the trial. From which it will be presumed, in the absence of evidence to the contrary, that the appellants incurred liability to them for the reasonable value of the services rendered by them. School Directors v. Trustees of Schools, 66 Ill. 247. The services rendered by counsel consisted in the filing of pleadings, and in presenting the appellant's case to the chancellor, all of which were known to the chancellor, and from which, in the absence of other evidence, he was authorized to determine the value of the services rendered. N.O., M. C.R.R. Co. v. Martin, 105 Miss. 230, 62 So. 228. Compare Humphreys County v. Cashin, 128 Miss. 236, 90 So. 888.
The decree of the court below will be reversed in so far as it fixes the amount of damages to be awarded, and the case will be remanded for the purpose only of determining the amount of the appellants' damages.
Reversed in part, and remanded.