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* Headnotes 1. Appeal Error, 3 C.J., section 1440; 2. Appeal Error, C.J., section 1440. The city of Natchez filed a bill in the chancery court against McNeeley to enjoin him from operating a ferry beginning within the city limits of Natchez and across the Mississippi river to the town of Vidalia, La., and to enjoin him from using a wharf alleged to belong to the city of Natchez, and to direct the sheriff to peremptorily remove McNeeley from the wharf and to give possession to the city's lessees.The bill alleged that in 1913 the city leased to McNeeley the property, and granted an exclusive franchise to McNeeley *Page 634 to operate a ferry within the limits of the city of Natchez and across the Mississippi river to Vidalia, La., for a period of ten years; that at the time the contract was made the automobile had not been developed as a means of public travel and locomotion, but that during the period of the lease the use of the automobile became general, and by reason of the improved highways and use of the automobile that the traffic and travel became great; that the defendant would not equip himself with sufficient accommodations to serve the public and for the business of operating the ferry; that he would not operate the ferry except between the hours of sunrise and sunset, and that his charges were unreasonable and his accommodations inadequate; that he refused to recognize the regulation of his business by the city, and that the said contract between the defendant and the city expired on the 14th day of October, 1923 but that the defendant continued to operate such ferry, although the city would not make a new contract with him; that in view of the fact that the defendant would not put in the proper equipment, make proper schedules, and provide proper accommodations, the city, on the 14th day of October, 1924, entered into a contract with the Royal Route Company, Limited, a corporation, for a ten-year period beginning October 14, 1924; that the said Royal Route Company, Limited, made a bid in which it agreed to put in the proper equipment, provide proper boats, with proper accommodations as set forth in the contract, and to maintain the street known as Ferry street between high water and low water mark at the Mississippi river in a condition rendering it reasonably safe and adequate. The property which the city claims to own upon which the landing and docks referred to are situated is at the foot of Ferry street, and described in the bill as "that certain part or parcel of lot No. 53 of the division of the Peter Little estate, particularly described as follows: Beginning at that certain point where the westerly line of Ferry street intersects the southerly boundary line of original lot No. *Page 635 23 of the division of the Peter Little estate, as shown by the map or plat thereof in the office of the clerk of this board, thence in a southerly direction a distance of one hundred and fifty feet along the western line of a roadway to a point thereon, thence in a westerly direction to the Mississippi river, thence up the Mississippi river to Silver street, and to that point on the Mississippi river made by a continuation of the southerly boundary line of said lot No. 23," etc.
The defendant applied to the chancellor for a hearing on the granting of injunction when the original bill was filed, and a hearing was granted, and the court granted the city a decree enjoining the defendant from operating the ferry and using said property described and directing the sheriff to remove the defendant and his boat from such property. An appeal withsupersedeas was applied for to the chancellor and refused, whereupon application was made to a judge of this court, who granted supersedeas on condition of bond in the sum of one thousand dollars being made in accordance with law. After the decree, and after the said appeal, the plaintiff, the city of Natchez, filed an amendment to its bill, setting up that the bond was insufficient as a supersedeas bond because the city of Natchez had passed an ordinance imposing a penalty of thirty dollars a day for the operating of such ferry without a license from the city so to do, and that the plaintiff had sued for and obtained a judgment in the circuit court for penalties amounting to more than three thousand dollars and that, before the appeal could be heard on its merits, the damages by reason of such penalty of thirty dollars a day would amount to many thousand dollars, and that it would require at least fifteen thousand dollars bond to cover the penalties which would accrue by reason of the appeal with supersedeas.
The bill as amended and the motion here does not state any definite damage other than the penalties imposed by the ordinance nor state such facts as damages could be calculated from. It does state that damages to the extent *Page 636 of three thousand dollars in addition to the penalties have been sustained, but does not state the facts from which the courts can draw any conclusion as to how the damages will accrue. No affidavits have been filed, nor any satisfactory showing of damage made as to anything other than the thirty dollars a day penalty.
It is familiar learning that a court of equity will not entertain a suit for penalties, nor does the penalty imposed by the ordinance constitute a proper element of damage flowing from the appeal with supersedeas. The petition should state specifically the facts that are relied on to constitute damage so that the court may know whether or not they are a proper element of damage.
The application in this case is insufficient, and the motion will be overruled without prejudice to the filing of a proper motion in accordance with the bond, if it is in fact insufficient.
Motion overruled.
Document Info
Docket Number: No. 24806.
Citation Numbers: 102 So. 564, 139 Miss. 628
Judges: ETHRIDGE, J., delivered the opinion of the court
Filed Date: 1/26/1925
Precedential Status: Precedential
Modified Date: 1/12/2023