INJUNCTION. Attorney's fee held not element of defendant's damages for wrongful issuance of injunction merely ancillary to relief sought in bill of complaint.
Where an injunction, issued on a bill of complaint, is merely ancillary to the relief therein, sought, and is dissolved only when the bill is dismissed on final hearing, and no services were rendered by the defendant's attorney in obtaining the dissolution of the injunction other than such services as were rendered in defending the case on its merits, an attorney's fee is not an element of the defendant's damages for the wrongful issuance of the injunction.
SMITH, C.J., delivered the opinion of the court.
The appellant exhibited an original bill in the court below against the appellee, by which it sought to recover for an alleged breach by the appellee of a co-operative marketing contract made by him with the appellant, and to obtain the specific performance by the appellee of this contract. As an incident to this relief, and in furtherance thereof, the appellant prayed for and obtained a temporary injunction restraining the appellee from further violating his contract. This injunction remained in force, and no attempt to obtain its dissolution was made until the case came on and was set down for final hearing on bill, answer, and motion to dissolve the injunction, and for damages for its wrongful issuance. When the case was called for trial, the bill was dismissed on motion of the appellant, and the court awarded the appellee an attorney's fee as damages for the wrongful suing out of the injunction.
It does not appear from this record that any services were rendered by the appellee's attorneys in obtaining the dissolution of the injunction other than such as were rendered in defending the case on its merits. Consequently the issuance of the injunction did not cause the appellee to incur any liability for attorney's fees in excess of that which he necessarily incurred in defending the case on its merits, and the case is therefore ruled by Mims v. Swindle, 124 Miss. 686, 87 So. 151; Howell v. McLeod, 127 Miss. 1, 89 So. 774, Giglio v. Saia (Miss.), 106 So. 513, and Hunter v. Hankinson (Miss.), 106 So. 514, decided January 4, 1926, but not yet [officially] reported. The attorney's fee should not be allowed.
The decree of the court below, in so far as it awards the appellee an attorney's fee as damages for the suing out of the injunction, will be reversed, and the appellee's motion therefor will be dismissed, but in all other respects the decree will remain in full force and effect.
Reversed.