Fox v. Miller

Cooper, J.,

delivered the opinion of the court.

The damages awarded by the chancellor are not such as are usually given by the chancery court under its rules of practice, but are allowable, if at all, under the statute. Clark v. Bank, 61 Miss., 614. Section 572, code 1892, provides that damages of five per centum shall be allowed upon the dissolution of an injunction “ to stay proceedings ón a judgment at law for money,” or “ to stay sales under deeds of trust or mortgages with power of sale.” The injunction in this case was not to stay proceedings on a judgment at law for money, but to stay proceedings in equity. Nor was it to stay a sale under a deed of trust or mortgage with power of sale, within the meaning of the second clause of the statute. That has reference alone to an injunction against the exercise of the power of the deed by the donee of the power proceeding in pais.

The motion of the appellee for damages was general in its-terms, and we find no suggestion for the fee of her solicitor. The statute (Code 1892, § 573) provides that a party desiring to have the same decreed by the chancellor or the chancery court “ shall suggest, in writing, on the hearing of the motion to dissolve the injunction, the nature and amount of the damages.”

The decree is reversed.