Staple Cotton Co-Op. Ass'n. v. Borodofsky , 139 Miss. 368 ( 1925 )

^* Headnote 1. Injunctions, 32 C.J., section 758. The appellant, the complainant in the court below, is a co-operative marketing association organized under the laws of the state of Tennessee, and the appellee, who is engaged in the growing of agricultural products, is a member thereof. The bill of complaint alleges a violation by the appellee of his contract with the appellant, and prays for an accounting, for a decree for what may be ascertained to be due the appellant, requiring the appellee to specifically perform his contract, and for an injunction restraining him from continuing to violate it. The prayer for specific performance and for an injunction is made under the provisions of section 17(b), chapter 179, Laws of 1922, which provides therefor in controversies between a co-operative marketing association and one of its members.

The appellee filed an answer and crossbill by which he denied having breached his contract with the appellant, alleged facts which he claimed authorized a rescission of the contract, and prayed therefor. This cross-bill was demurred to, but no decision thereon has yet been made. The appellee then filed a motion to dissolve the injunction and for damages for its wrongful issuance.

This motion was heard in vacation, and a decree was rendered thereon dissolving the injunction and awarding the appellee a decree for an attorney's fee of two hundred and fifty dollars. An appeal from this interlocutory decree was granted and perfected under section 35, Code of 1906 (section 10, Hemingway's Code).

The assignment of error complains only of the allowance by the court below of the two hundred and fifty dollars attorney's fee, and presents no questions for decision by which the principles of the case can be settled for the guidance of the court below when it is remanded thereto, and the appellee suggests that for that reason the appeal should be dismissed. An appeal under this statute need not necessarily be one that will settle the principles of the case, but may be "from an interlocutory order or decree whereby money is required to be paid," and such is one of the requirements of the decree here.

The injunction here in question is not the sole or principal relief sought by the appellee, but is merely ancillary thereto, and may, of course, be reinstated on the trial of the cause on its merits if it should then appear that the appellee is entitled thereto.

The jurisdiction of a chancery court to award damages on an injunction bond is conferred by section 624, Code of 1906 (section 384, Hemingway's Code), under which this court held, inAdams v. Ball, 5 So. 109, the award of damages for the dissolution of an injunction that is merely ancillary to the relief sought by the complainant must await the final termination of the case, as has always been the rule in actions at law on the injunction bond. It is true that, where the injunction is the sole relief sought, damages therefor may be rendered on the dissolution thereof, though the bill of complaint cannot be finally dismissed under section 621, Code of 1906 (section 381, Hemingway's Code), until the next term of court. The distinction between the two kinds of an injunction, in so far as the award of damages for the dissolution thereof is concerned, is pointed out in Derdeyn v. Donovan, 81 Miss. 696, 33 So. 652, and the reasons for awarding damages on the dissolution of the one prior to the final termination of the suit, but not on the dissolution of the other, were set forth. Wilson v. Pugh, 61 Miss. 449;Strong v. Harrison, 62 Miss. 61; Curphy v. Terrell,89 Miss. 631, 42 So. 235 — relied on by the appellee, are not here in point. The question decided in the first of these cases was simply that the appeal should be dismissed because not perfected within the time required by the statute. The injunction dissolved in each of the two other cases was the sole relief prayed for therein, and, moreover, in neither of them was the question here under consideration raised.

In so far as the decree of the court below awards damages on the injunction bond, it will be reversed, and the cause remanded.

Reversed in part, and remanded.