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JEANNEAN JOHNSON, EXECUTRIX OF ESTATE OF LAUREE MIZELL, DECEASED v. JOHN E. BLACK

NOVEMBER 13, 1985

JEANNEAN JOHNSON, EXECUTRIX OF ESTATE OF LAUREE MIZELL, DECEASED
v.
JOHN E. BLACK, W. K. BLACK AND LEON BEECH



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

Notwithstanding our fervent hope that this more than eight year old litigation was at an end, see Johnson v. Black, 469 So. 2d 88, 89, 91 (Miss. 1985), we are presented yet another round. This time the Appellees, John E. Black, W. K. Black and Leon Beech, successful by virtue of our decision of May 15, 1985, have filed a motion for assessment of statutory penalty under the authority of Miss. Code Ann. 11-3-23 (Supp. 1984).

A bit of background is needed. This action began when Lauree Mizell, now deceased, filed her bill of complaint alleging that she was the owner of the 78 acre tract in issue by adverse possession. Immediately prior thereto Mizell had been grazing cattle on the land and in that sense possessed -

 or, as has since been adjudicated, permissively used the land. The Blacks, record title holders, gave notice that they were about to cut timber from the land and that they wanted Mizell's cattle off. Immediately thereto Mizell sought and obtained a temporary injunction prohibiting the Blacks and Beech from cutting their timber. The Blacks were thus deprived of possession of their property. The Blacks asserted their record title.

 After one false start, see Mizell v. Black, 369 So. 2d 755 (Miss. 1979), the Chancery Court of George County on February 24, 1982, entered its final judgment in effect upholding the Blacks' title and restoring them to possession of the 78 acre tract. The judgment dismissed the Mizell complaint, removed from the Blacks' title the cloud of any pretended claim of Mizell, and further provided

 that the temporary injunction heretofore entered in this cause shall be and the same hereby is dissolved. . . .

 The record further reflects that each of the three Appellees has now filed in the Chancery Court a motion for damages said to have been sustained as a result of the "improper or erroneous suing out of an injunction" by Mizell. W. K. Black claims $5,382.65, John E. Black claims $2,694.18 and Leon Beech claims $2,086.00. The chancellor's final judgment provided that the motion for damages

 shall be heard by this court on a day and time to be set by this court.

 Shortly thereafter, however, the instant appeal was perfected and, insofar as we are aware, there has never been a hearing on the motions for damages for wrongfully suing out the injunction.

 The primary question for consideration today, however, is Appellees' entitlement to the fifteen percent statutory damages claimed under Section 11-3-23. That statute provides, in pertinent part:

 In case the judgment or decree of the court below be affirmed, . . ., the Supreme Court shall render judgment against the appellant for damages, at the rate of fifteen percent (15%) as follows: . . . If the judgment or decree [appealed from and affirmed] be for the possession of real or personal property,

 the damages shall be assessed on the value of the property. . . . If the judgment or decree [appealed from and affirmed] be for the dissolution of an injunction or other restraining process as to certain property, real or personal, . . ., and the only matter complained of on the appeal is the decree as to some particular property or claim on it, the damages shall be computed on the value of the property or the interest in it, if the value of the property or interest in it be less than the judgment or decree against it; . . . .

 Our prior cases have recognized three requisites for imposition of the penalty. These are:

 (1) The decree or judgment appealed from must have been a final decree or judgment, not an interlocutory one. Peoples Bank & Trust Co. v. L&T Developers, 437 So. 2d 7, 11 (Miss. 1983); Canal Bank & Trust Co. v. ...


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