Opinion
No. 32934.
February 7, 1938.
APPEAL AND ERROR.
Where Supreme Court had reversed judgment and remanded cause to enable trial court to adjudicate damages for wrongful issuance of writ of injunction, and party entitled to damages appeared in Supreme Court, expressly waived damages, and requested final decree, Supreme Court would enter final decree but would disallow damages, since otherwise Supreme Court could not enter final decree.
APPEAL from the chancery court of Forrest county. HON. F.M. MORRIS, Special Chancellor.
Stevens Foote, of Hattiesburg, for appellant, on motion.
The appellant's plea of res adjudicata to the bill of complaint constituted a plea in bar.
Griffith's Miss. Chancery Practice, sec. 327; 1 Whitehouse Equity Practice, sec. 247.
The plea was filed to the entire bill of complaint and not merely to a part thereof, and this court held that "the plea of res adjudicata presented a complete defense" to the cause of action alleged in the bill of complaint. We think, therefore, that this court should dismiss the bill of complaint and not remand the case.
It is the duty of this court, where the decree of the lower court is reversed, to render such decree as the court below should have rendered, unless it be necessary, in consequence of this court's decision, that some matter of fact be ascertained, or damages be assessed by a jury, or where the matter to be determined is uncertain. In the instant case there is, of course, no necessity for the assessment of damages by a jury. There is also no matter of fact to be ascertained, and there is no uncertain matter to be determined. All of the facts herein have been determined and are matters of record in this court.
Section 3378, Code of 1930; Bailey v. Gaskin, 7 Miss. 519; Hariston v. Montgomery, 102 Miss. 364, 59 So. 793; Scottish Union National Ins. Co. v. Warren-Gee Lbr. Co., 104 Miss. 636, 61 So. 310; Davis v. L.N. Dantzler Lbr. Co., 126 Miss. 812, 89 So. 148; Joe Duck Kwong v. Board of Miss. Levee Comrs., 164 Miss. 250, 144 So. 693.
If the court included a remand in its previous order reversing and remanding the case for the purpose of having the lower court determine the damages resulting to the appellant from the wrongful issuance of the writ of injunction herein, we respectfully say to the court that it is at liberty to ignore any claim for damages which may have been filed in the lower court by the appellant, and that if judgment final is rendered here, there will be no claim made for such damages. The appellant, therefore, requests this court to enter the judgment that the court below should have entered, which, we respectfully submit, is a judgment sustaining the appellant's plea of res adjudicata, reversing the decree appealed from, dissolving the writ of injunction and dismissing the bill of complaint.
Pan American Petroleum Corp. v. Gully, 175 So. 185.
T.J. Wills, of Hattiesburg, for appellee.
Without answering or attempting to answer the brief in support of the motion appellee presents to the court the fact that since the filing of the original suit and the amendment herein, he has come into possession of facts that entitle him, as he thinks, to maintain his action in the court.
Appellee presents here a copy of an amended bill of complaint that he has already asked the Chancery Court of Forrest County to permit him to file in this cause. This amended bill of complaint is presented to this court for the purpose of the court considering it should it give consideration to the motion herein to correct the judgment. If the facts set forth in the amended bill of complaint were found to be true on the trial of the case by the Chancellor, and a decree rendered sustaining the facts alleged as having been proved, if this court were to hold that the decree was proper and that it was not res adjudicata, then we feel that the court should and would permit its original order to stand and the cause to be remanded.
We submit that in view of the sworn pleadings that these facts can now be proven, that the complainant is entitled to have his amended bill allowed and a hearing on those facts that are set up as being peculiarly within the knowledge of appellant, defendant, and by it concealed until within six months last past.
With the request that the court remand the cause so that the court below may allow the amended bill of complaint to be filed, we submit that the motion should be overruled.
Much as we sympathize wth appellee as a result of the decision in Adler v. Interstate Trust Banking Co., 166 Miss. 215, 146 So. 107, 87 A.L.R. 347, followed in the opinion delivered on December 13, 1937, 177 So. 523, we are bound to hold now that the controversy is at an end on its merits. We remanded the case that the trial court might adjudicate the damages on the injunction. Appellant now appears and expressly waives any claim for damages; and upon that basis a final decree will be entered here for appellant — but expressly disallowing damages for the wrongful issuance of the writ of injunction. Otherwise we could not enter any final decree as appellant has requested us to do.
So ordered.