Menken v. Frank , 58 Miss. 283 ( 1880 )

George, J.,

delivered the opinion of the court.

The controversy involved iu this case was before us at the April term, 1880. See 57 Miss. 737. At that term it was on a writ of error to the Circuit Court of Marshall County to revise a judgment at law sustaining a demurrer to the declaratiou on the injiinction-bond now sued on in equity. This bond contained a stipulation to pay the debt enjoined, instead of to pay the damages and costs which the obligees might sustain by reason of the wrongful suing out of the injunction, in case it should be dissolved. The stipulation in the bond was inapplicable to the debt enjoined, as the injunction was against a sale of property under a deed in trust, and not against proceedings at law. The defendants in error-in that case insisted that the stipulation for the payment of the debt was void, because it was not authorized by law; and the plaintiff in error insisted that the injunction granted was a good consideration for the injunction-bond, and that, as the obligors had voluntarily inserted a stipulation not required by law, in lieu of the required stipulation, which was omitted, and the obligees had accepted the bond, the obligors were bound by it. The court did not agree with either view, but reached the conclusion that, in so far as the stipulation inserted might authorize a recovery in excess of what would have been allowed in case the bond was made in accordance with the statute, as to the excess only it was without consideration, and not enforceable. Under this view, the; obligees had a bond which, in its terms, bound the obligors to pay the whole debt. This recovery, we held, could not be had to that extent, but only to the extent that damages had actually been sustained. In a court of law it was obviously impossible to aver, as a breach of the stipulation to pay the debt, that the obligees had suffered damages in the payment of attorneys’ fees, and in depreciation of the property, and the like. They could only aver that the obligors had failed to pay the debt. It hence followed that in a court ®f law the obligee could not recover to the extent that we had held he was entitled to. We expressed this view then, and, further, that the obligee’s recovery was in equity. It is now suggested that this last opinion was mere obiter dictum, and not binding as authority. We do not agree with this view. The opinion on this point was necessary to express the opinion of the court on the rights of the parties, and was the necessary result of what we had held as to their rights under the bond and t.he extent of the power of a court of law. But if it was a mere obiter dictum, and therefore not authority, we now, upon a reexamination of the question, reach the same conclusion, and therefore direct a reversal of the decree sustaining a demurrer to the bill in equity, with leave to the appellees to answer within sixty days from the filing of the mandate in the clerk’s office in the court below.