Opinion
No. 30536.
March 27, 1933.
INJUNCTION. Though suit by school superintendent to enjoin school trustees from interfering with duties was dismissed after superintendent's term had expired, liability on injunction bond held not moot so as to preclude recovery thereon.
In suit by elected school superintendent to enjoin school trustees of municipal school from interfering with duties, the trustees, prior to the expiration of the school term, made a motion to dissolve the injunction and for the allowance of damages for its wrongful issuance. The motion, however, was not passed on until long after the school year had expired, and finally the motion to dismiss was sustained. The dismissal of the injunction suit operated as a dissolution of the injunction, and conclusively established the fact that it had been wrongfully sued out, and that the school trustees were entitled to recover whatever damage they sustained by its issuance.
APPEAL from Circuit Court of Tallahatchie County.
Edward Smith and Ed. C. Brewer, both of Clarksdale, for appellants.
The dismissal of a bill in chancery court usually operates as a dissolution of a temporary injunction. But this rule does not hold good where the question involved has become moot.
The decree of November 12, 1929, did not adjudicate anything and is of no more force and effect than an order remanding the case to the files. At the time of the decree the questions involved had become moot. At the date of the decree the chancery court of Tallahatchie county, Mississippi, could not enter any judgment which could be enforced. It could not have been made the injunction perpetual, because there was nothing to enjoin. It could not have granted appellant, Campbell, any relief for the reason that the right to relief ended on May 26, 1926.
Yates v. Beasley, 133 Miss. 301, 97 So. 676.
There was no proof offered in this case showing or tending to show that the injunction granted by Judge ETHRIDGE on the 9th of May, 1926, was wrongfully sued out. We maintain that before recovery could be had from appellant A.C. Campbell, and appellant The United States Fidelity Guaranty Company, surety on the injunction bond, proof would be required showing that the injunction was wrongfuly sued out, because as above stated, the decree of dismissal does not adjudicate the wrongful suing out of the injunction.
If the injunction was wrongfully sued out, this should have been proved by appellees when the case was on trial in the lower court. No effort, however, was made in this direction. Appellees, the plaintiffs in the court below, were not without remedy. No question was made as to the right of appellees to ask for relief; and if when the opportunity afforded itself in the trial court, sufficient proof had been offered showing the wrongful issuance of the injunction a verdict of the jury might be upheld. But certainly appellees were not entitled to any relief when they relied solely on the decree of November 12, 1929, which decided nothing and which amounted to no more than a remanding of the case to the files.
Roberson Cook, of Clarksdale, for appellees.
The dismissal of a bill whether by the court or by the complainant operates as a dissolution of any injunction issued thereunder and establishes the fact that it was wrongfully sued out and that the defendant is entitled to recover whatever damages he sustained by the issuing of same.
Yale v. Baum, 70 Miss. 225, 11 So. 879; Somerville v. Mayes, 54 Miss. 31; Alexander v. Woods, 115 Miss. 164, 75 So. 772; Marshall v. Minter, 43 Miss. 666; Harrison v. Balfour, 5 S. M. 301; Griffith's Chancery Practice, section 463; Johnson v. Howard, 141 So. 573; Day v. McCandless, 142 So. 486.
Something is said in the brief of appellants that the chancery court in dismissing the bill and dissolving the injunction dismissed it upon the ground that the question had become moot. As a matter of fact, the bill was dismissed on the ground of the failure of the original complainants to prosecute the cause.
Argued orally by Edward W. Smith, for appellant.
Appellees in their capacity as trustees of the Tutwiler municipal school, and individually, brought this action in the circuit court of Tallahatchie county against appellant A.C. Campbell, as principal, and appellant United States Fidelity Guaranty Company, as surety, to recover damages upon an injunction bond executed by them in favor of appellees in a suit then pending in the chancery court of said county, styled A.C. Campbell, Complainant, v. John Stauffer et al., Defendants. The court directed a verdict in favor of appellees on the issue of liability, and submitted to the jury the question alone as to the damages to be assessed on the bond. The jury returned a verdict in favor of appellees in the sum of five hundred dollars; from that judgment appellants prosecute this appeal.
The chancery court case in which the injunction bond was executed came up to this court on appeal; the report of the case being in Campbell v. Warwick, 142 Miss. 510, 107 So. 657. Reference is made to the report of that case as a necessary part of the history of the present case. Promptly, and before the expiration of the school term, appellees entered a motion to dissolve the injunction and for the allowance of damages for its wrongful issuance. Through no fault of appellees, this motion was not passed on by the court until long after the school year of 1925-26 had expired. Appellant had been elected superintendent of the school for that year. Later appellees appeared before the chancery court prepared to try the case. Appellants failing to appear and prosecute, appellees moved the court to dismiss the cause upon that ground. This motion was sustained.
Appellants contend that there is no liability on the injunction bond, because at the time of the dismissal of the injunction suit by the chancery court the question in that case was moot — there was nothing for the court to decide. This contention is based on the facts, which are undisputed, that appellant Campbell's contract as superintendent of the school had expired when the bill was dismissed. Appellees contend that, although the grounds upon which the chancery court cause was based were moot, nevertheless the question of liability on the injunction bond was not a moot question.
To sustain their contention appellants rely on Yates v. Beasley, 133 Miss. 301, 97 So. 676. In that case the patrons of a consolidated public school enjoined the county superintendent of education from contracting with a certain person as a teacher in the school for a certain scholastic year. The injunction was dissolved by the chancery court, and from that decree an appeal was taken to the supreme court. When the cause was heard and decided in the supreme court, the school term had expired. The court held that the questions involved were moot; that the controversy between the parties was no longer real; that the court could render no judgment which could be enforced, and would not do the vain thing of rendering a judgment. The appeal was therefore dismissed.
Appellees, to sustain the decree appealed from, rely on Harrison v. Balfour, 5 Smedes M. 301; Marshall v. Minter, 43 Miss. 666; Somerville v. Mayes, 54 Miss. 31; Yale v. Baum, 70 Miss. 225, 11 So. 879; Alexander v. Woods, 115 Miss. 164, 75 So. 772; Johnson v. Howard (Miss.), 141 So. 573; Day v. McCandless (Miss.), 142 So. 486; Griffith's Chancery Practice, section 463. Appellees contend that the dismissal of the bill by the chancery court operated as a dissolution of the injunction, and conclusively established the fact that it had been wrongfully sued out, and that they were entitled to recover whatever damage they sustained by its issuance. The authorities referred to fully support that contention.
It is true that, at the time of the dismissal of the bill, the question whether appellant Campbell was rightfully the superintendent of the school for the scholastic year 1925-26 was not a live question, because the decision of the court one way or the other could not be enforced. It does not follow, however, that the question of liability on the injunction bond was a dead issue. The liability on the bond for costs and damages was still a live question. The grounds for the injunction, although moot so far as their original purpose was concerned, were alive incidentally in order to determine what had become the main question, namely, liability on the injunction bond.
Affirmed.