Vicksburg Water Works Co. v. Mayor of Vicksburg

Mayes, C. J.,

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 *139 further ordered that the claim for damages on account of the wrongful suing out of the said injunction, interposed hy the defendants hereto, be and it is hereby passed for hearing at a future time.” On the 25th day of March the matter of the allowance of damage seems to have been taken up again by the court, and .on that day the waterworks company, by way of answer to the application for the allowance of damage for the wrongful suing out of the injunction, stated in a written pleading, filed and sworn to by counsel for the waterworks company, substantially that the only authority of the court to allow damage is to be found in section 624 of the Code of 1906, and that under that section of the Code the damage must be allowed, if at all, on the motion to dissolve, and not afterwards; that, if damage is not awarded at the time the injunction is dissolved, it cannot afterwards be done, except at the final hearing of the cause. Other reasons were given in the answer as to why the court should not take up the question of damage at that time, even though the reasons already assigned were not sufficient; but the latter reasons are predicated on certain facts stated and not necessary to be here repeated. On the same day — that is, on March 25th — by consent of the parties it was ordered that the application for the fixation of damage by the- court should be continued until April 15, 1910. In April there seems to have been a decree made by the chancellor, though the decree is unsigned, dismissing the application for damages, “without prejudice to the rights of said defendants to sue for such damage as they have sustained, because of the wrongful suing out of the said injunction, at law upon the injunction bond.”

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 *140 case of Derdeyn v. Donovan, 81 Miss. 696 , 33 South. 652 . In this condition of the chancery suit, with the hill still pending and not finally dismissed, and on the 26th day of March, 1910, the city of Vicksburg, through its proper officers, instituted a suit in the circuit court of Warren county on the bond executed by the waterworks company, with the Empire State Surety Company as security thereon, seeking to recover the sum of three thousand and five hundred dollars as damage for the wrongful suing out of the injunction. The declaration substantially alleges that on a certain day the Vicksburg Waterworks Company wrongfully procured an injunction restraining the city of Vicksburg from using water from the hydrants of the waterworks company for the purpose of testing a certain sewerage system then being installed ; that the injunction so wrongfully issued was dissolved by the chancery court on the 21st day of March, 1910; that at the time the injunction was procured the' waterworks company gave a bond payable to the city of Vicksburg, conditioned for the payment of all damages occurring by the wrongful suing out of the injunction. The declaration avers the- dissolution of the injunction by the chancery court and the accrual of the right thereby to sue on the bond. The bond is made an exhibit to the bill. The declaration nowhere alleges a final disposition of the injunction suit, or dismissal of the bill, nor is any such disposition shown in any of the exhibits or pleadings in the case. When the declaration was filed, appellants filed a demurrer, setting up substantially that the declaration did not allege that the decrée dissolving the injunction was a final decree, or that the injunction suit had been finally 'disposed of. The demurrer was overruled by the court, and at a subsequent date during the same term of court the appellants filed several pleas to the declaration. We shall not set out all the pleas, but give the substance of all. The first plea denied the dissolution of the injunction; the second plea denied that *141 the plea of dissolution was a final decree, and alleged that the injunction suit was still pending in the chancery-court; the third and fourth pleas put in issue the question of the alleged damage; the fifth plea denies the right of the city to claim any counsel fees as -damages, because of the fact that the city had regularly retained salaried counsel. Proof was taken on the issue thus raised, and the cause tried, resulting in a verdict in favor of the city of Vicksburg for the sum of one thousand dollars, and from this judgment an appeal is prosecuted. ,

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; *142 in cases of serious illness, consulting physicians are called to the same patient. Bach is entitled to his pay, and in every such case the necessity of so doing must be left to the discretion of the party, or authority, calling in the help. Of course, if bad faith is shown, no liability would attach; but the city is not charged with bad faith, nor does the proof in the case even hint at that. The case of Nixon v. Biloxi, 76 Miss. 810 , 25 South. 664 , and all other authorities cited on this point by appellants, have no application under the facts of this case. The authorities cited merely hold that where the dissolution of the injunction and the services rendered are by a salaried officer, and no additional fees are actually paid, but the service rendered in the official capacity of the person rendering same and as a part of his duty, there can be no recovery on the injunction bond for counsel fees for such service. But the facts of this case do not bring it within the rule declared by the cases cited. See cases cited in the note on page 75 of 16 L. R. A. (N. S.), in the case of Littleton v. Burgess. In the case of Warren County v. Booth, 81 Miss. 267 , 32 South. 1000 , this court held that boards of supervisors may employ other counsel in cases in which the county is interested, even though the board have regular counsel employed at an annual salary.

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 *143 this contract of employment, as shown in the record, if this injunction suit is finally dismissed, the bond given in that suit is liable for a reasonable attorney’s fee as compensation to the associate counsel. The city attorney seems not to have rendered any service in this suit, and is certainly not claiming any fees on account of any service rendered by him. The city attorney states that at the time this suit arose he was so busy that it was necessary for associate counsel to be employed, and, as stated by counsel for appellee, “there is not a suggestion in the record that additional counsel was employed merely for the purpose of aggravating the damage.”

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.”

*144 We have-quoted from brief of counsellor appellee for the purpose of emphasizing the contention made in the ease. Before proceeding to discuss the questions involved on the authorities which we shall call attention to a little later, we will say that our view of the contention made by counsel for appellants is, not that the suit instituted on the bond was merely prematurely brought, but that at the time of its institution no cause of action existed, because no final decree of dismissal had been made. It is quite true that in appellants’ brief the question is asked: “Was .the plaintiff’s suit premature?” But further on in the brief counsel for appellants state: “We contend that no right of action on the injunction bond had accrued.” But it can make no difference what' appellants’ counsel stated in the brief as to whether or not he challenged the declaration because premature, or because it failed to state a cause of action. The court, in determining this question, will look to the pleading itself for an interpretation of its legal effect.

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 *145 by the bill of complaint was an injunction, and since the court had denied that relief and dissolved the injunction, the court, had the power to dismiss the bill, since the record shows that full proof was made and no suggestion was made that further testimony was desired to be taken, or any improvement or addition desired to be made in the case by way of amendment. But the court did not dismiss the bill, as was done in the case of Bass v. Nelms, 56 Miss. 502 , and the case of Derdeyn v. Donovan, 81 Miss. 696 , 33 South. 652 . In both of the cases just cited the court dissolved the injunction and dismissed the bill, but not so here.

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 *146 tion 1919 of the Code of 1880, which section in the Code of 1880 is practically the same as section 624 of the Code ■of 1906; but the court said: “Section 1919 of the Code ■of 1880 does not change the rule announced in Penny v. Holberg, 53 Miss. 567 , that an action cannot be maintained on an injunction bond until the final determination of the case. The only purpose and effect of the last clause of the section was to exclude the conclusion that the remedy provided by the section was a denial of the right before recognized to sue on the bond. ’ ’

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 *147 sary to further protract the discussion in this case. The requirement that an injunction bond shall not be placed in suit until a final judgment dismissing the bill is based upon just and sound principles of law. The givers of the bond only agree that it shall become liable for damages in the event the person suing out the injunction shall wrongfully do so. Until there has been a final determination of the suit in which the bond'is given, it cannot be definitely ascertained as to whether or not there is, or will be, any liability on the bond. Until liability has accrued on the bond, it is merely contingent on the part of the make'rs,' and may never be a real liability. The mere giving of the bond creates no liability, and until there is a liability there is no cause of action, and any declaration failing to state sufficient facts to show liability fails to state a cause of action. The declaration must show the giving of the bond and the final determination of the injunction suit. See 22 Cyc., 1045, noté 35. Reversed and remanded.