Austin Clothing Co. v. Posey , 106 Miss. 448 ( 1913 )

Peed, J.,

delivered the. opinion of the court.

Upon the original hearing, this case was affirmed. Thé opinion was rendered October 20,1913, and is reported in 63 So. 224.

In the suggestion of error it is contended that the chancellor erred in making the injunction perpetual. Our attention has been directed to the prayer in the bill of complaint. We quote from it as follows: “Wherefore, the premises considered, she prays that a temporary writ of injunction issue restraining the sale of the said property under said execution until the title to the same can be settled in the chancery suit now pending. . . . And upon a final hearing of this cause she prays that this injunction bill be made a part of the suit already pending in the chancery court, and that all right, title, or interest the said Austin Clothing Company has or may’have to enforce its judgment against said property be forever canceled and held for naught. ’ ’

It will be seen that appellee only sought a temporary injunction. She only desired the sale of the property enjoined till the suit, then pending, touching the title to the property, was concluded. It is recited in the decree that the hearing before the chancellor was, upon motion to dissolve the temporary injunction, granted to stay the sale of the property. He could have overruled the motion and continued the temporary injunction; but he erred in making the injunction perpetual. The decree says that the prayer of the bill is sustained. There is nothing in the prayer asking for perpetual injunction. The injunction can only be continued till the title is settled by the ending of the suit. The suggestion of error as to this point is well taken.

Eeversed and remanded for decree in conformity with this opinion.

Reversed and remanded.