Peyton v. Vardaman ( 1912 )

Cook, J.,

delivered the opinion of the court.

Without stating the details of the theory adopted by the parties to the suit out of which the present litigation grows, it is only necessary to say that a bill of complaint was filed in the chancery court of Hinds county by which the state of Mississippi prayed for certain relief against appellee. No demurrer was interposed, and no answer was made to the bill. The state had served notice on appellee, defendant in the bill, that at a certain time and place and before an officer named it would proceed to take depositions to support the allegations of its complaint. Thereupon appellee filed a bill in the same court, praying for the issuance of an injunction against the attorneys of complainant, the state, to restrain them from taking depositions. The chancellor granted the prayer of the bill, and the writ of injunction was served on the attorneys and the notary public before whom the depositions were to be taken. A motion was made to dissolve this injunction, which motion was in part sustained by the chancellor, and a decree was entered by the court against appellee and the sureties on his injunction bond for attorney’s fees in the sum of one hundred and fifty dollars, by way of damages for the wrongful suing out of the injunction. Defendants and complainant appealed from this decree.

It is the contention of complainant that the motion to dissolve should have been overruled. Was it within the judicial powers of the chancellor to grant the injunction to restrain parties to a suit in equity from exercising the statutory privilege of taking depositions in support of the allegations of the original bill of complaint? We can find no authority for the exercise of this power. The writ of injunction is granted upon the theory that it is necessary to prevent irreparable injury to the complaining party. There was no allegation in the bill of complaint indicating that such injury would result from taking depositions as evidence in the pending case against appellee. It is contended that the averments of the bill filed by the state, if taken as true, nevertheless failed to show any cause of action against appellee. This question cannot be considered by this court, nor could the chancellor have considered it in granting the injunction in the present case. That issue could have been raised by a demurrer, and we have been unable to find any warrant for testing the question by filing an original bill setting up matter^ aliunde the record.

No argument is necessary to demonstrate that the procedure adopted in the present ease would, if approved, lead to much confusion of rights and remedies, and make possible the. trial of innumerable issues by collateral proceedings, which issues are directly presented by the original action and are the precise questions which the court must decide in reaching a conclusion as to the rights of the parties to the .lawsuit. The chancellor, we think, should have sustained the motion to dissolve the injunction as a whole, and as the evidence in support of the claim for damages resulting from the wrongful suing out of the injunction is not made a part of the record, we cannot say that the amount decreed as attorney’s fees does not fully compensate defendants. In other words, while we think the bill was not maintainable in' any view of the case, yet we think the result reached by sustaining the motion to dissolve in part probably accomplished substantial justice.

Affirmed on appeal and cross-appeal.

ON MOTION TO AMEND DECREE.

Per Curiam. It appearing that the original suit out of which grew .the present case has been dismissed, and therefore it would be futile to remand this cause for further proceedings, the case was affirmed on appeal and cross-appeal. , It further appearing that a judgment has been entered taxing appellant with the costs of appeal, it is ordered that the judgment shall, be changed, so as to tax cross-appellant with the costs, and also, to allow five per cent damages. to appellant.'

Motion to allow attorney’s fees oh appeal is overruled.!