Nixon v. City of Biloxi

Whitfield, J., delivered the opinion of the court. No counsel fees should have been allowed as damages. The attorneyof the city was a salaried officer under annual contract. The city suffered no damage as to fees. This is settled law. 2 High on Inj., sec. 1688. Counsel for appellee, anticipating this ruling, offer to remit, and ask us to affirm. Ordinarily we would do so, but cannot in this case, because of the allegation in the sworn bill that the mayor and board of aldermen had not directed the tax collector at what place to sell, as required by § 3022, code of 1892. This allegation, strangely, is not denied by the answer, nor in any way referred to. Nor is there anything in the testimony referring to it. We regret the necessity of reversing the case on this ground, since all the other contentions of the bill are untenable, the assessment and the increase in valuation being perfectly valid. But we feel safer in reversing the decree for the two errors indicated, and reinstating the injunction, with [813] leave to both parties to amend, so that the matter may be fully investigated and full justice done. So ordered.