Curphy v. Terrell
Curphy v. Terrell
Opinion of the Court
delivered tbe opinion of the court.
This case is controlled by the principle announced in Jamison v. Dulaney, 74 Miss., 890 (s.c., 21 South. Rep., 972). The principle is this: When an injunction is sued out merely in aid of or as auxiliary to the principle equitable relief sought to be established by the bill, and the injunction is dissolved, counsel fees caused by the wrongful issuance of the injunction are properly recoverable both for services in securing the dissolution in the lower court and for services in preventing that decree from being reversed in the supreme court, because all such services, so rendered, are rendered in the effort to dissolve the injunction and keep it dissolved, and the fees in both courts are directly occasioned as damages by the wrongful issuance of the injunction, always provided that the fees in the supreme court in such case are fees rendered solely in resistance of an interlocultory appeal to reverse the decree dissolving the injunction. If in such case the bill is retained after the injunction has been dissolved for the hearing of the matter of equitable cognizance involved in the bill, that case proceeding to hearing and decree in the court below or later in the appellate court on appeal, no counsel fees can be allowed the attorneys for the respondent, for services thus rendered not in and about the dissolution of-the injunction at all, but solely in and about ■ the conduct of the trial on the hearing in the chancery court or the supreme court, for the obvious reason that those fees were in no way occasioned by the issuance of the injunction. So in those cases in which there is no matter of equitable cognizance at all, except the- injunction itself, and in which, of course, the dissolution of the injunction involves the dismissal of the bill, counsel fees are-allowable for services both in the court below and in the supreme court, for the very obvious reason that they are all incurred in securing and maintaining the dissolution of the injunction, and are thus damages caused by its issuance.
It is a matter of common knowledge amongst the profession that a less fee should be allowed for services in the supreme court than in the circuit or chancery court. The old tariff in use in this state customarily made the fee in this court one-half the fee in the court below. The whole profession may be said to have knowledge of this fact. The appeal from the decree
The decree will he reversed, and a decree entered here for one-half the amount awarded helow. 8o ordered.
Reference
- Full Case Name
- John Curphy v. Alexander Terrell
- Cited By
- 11 cases
- Status
- Published
- Syllabus
- 1. Chancery Practice. Injunction. Dissolution. Appeal. Solicitor’s fees. If an injunction be dissolved by the chancery court and an appeal prosecuted to the supreme court to reverse the decree and reinstate the injunction, the appellees are entitled upon affirmance of the decree and return of the cause to the chancery court to an allowance by way Of a reasonable fee for the services of a solicitor in the supreme court resisting the effort to reinstate the injunction, although the chancery court in the decree from which the appeal was taken made an allowance for a solicitor’s fee for services in that court in procuring the dissolution. 2. Same. Case. Supreme court counsel fees. The allowance made in this case by the chancery court for a solicitor’s fee in the supreme court was excessive; it should not have exceeded one-half of a proper fee in the chancery court.