United States Fidelity & Guaranty Co. v. Wrenn

• Decision Date: 01 March 1937
• Docket Number: No. 6703.,6703.
• Citation: 89 F.2d 838,67 App. DC 94
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. WRENN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

67 App. DC 94, 89 F.2d 838 (1937)

UNITED STATES FIDELITY & GUARANTY CO. v. WRENN.

No. 6703.

United States Court of Appeals for the District of Columbia.

Argued December 10, 1936.

Decided March 1, 1937.

Louis M. Denit and Thomas S. Jackson, both of Washington, D. C., for appellant.

W. Gwynn Gardiner and James M. Earnest, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, and GRONER, Associate Justices.

VAN ORSDEL, Associate Justice.

This is an appeal from a judgment of the Supreme Court of the District of Columbia (now the United States District Court for this District), awarding damages against appellant as surety on an undertaking given in conjunction with an attachment before judgment.

It appears that on September 1, 1930, one Morrison leased from appellee, Wrenn, the premises 1215 Sixteenth Street, N. W., in the city of Washington for a term of one year from that date, at a rental of $325 a month, payable in advance. Morrison paid the rent for the month of September, but paid no further rent. The lease agreement contained the following provisions: "And in the event that the party of the second part (lessee) should fail to pay said rent when due or within ten days thereafter, then the said party of the first part may at his option consider the said party of the second part a tenant at will and the said party of the second part hereby gives the said party of the first part the right to re-enter and repossess himself of the said premises if the said party of the first part may deem it wise to do so. The party of the second part does hereby agree that if he permits the rent to (be) unpaid and in arrears for ten days after the same shall become due according to this agreement then the said party of the first part shall have the right to consider the entire rent for the term of this lease due and payable and in case of such default the party of the second part agrees herein that the rent for the term of this lease may all be due and payable and the party of the first part may have the right to recover forthwith or otherwise."

On November 26, 1930, Morrison filed suit in the lower court against Wrenn for money had and received in the amount of $11,000. On December 23, 1930, Morrison filed an affidavit in attachment in the cause, setting forth that the defendant, Wrenn, was a nonresident, and on the same date he filed a bond in the sum of $22,000, with the appellant, United States Fidelity & Guaranty Company, as surety, conditioned that Morrison should make good all costs and damages which Wrenn might sustain by reason of the wrongful suing out of the attachment. A writ of attachment and garnishment thereupon issued, and the premises, 1215 Sixteenth Street N. W., were attached. In addition to the attachment of the realty, Morrison caused service of the writ of attachment upon himself, "attaching credits and property of the defendant" in the hands of Morrison as garnishee. Morrison, as garnishee, in answer to interrogatories, after setting forth the facts as to the rentals under the lease, stated that he, as garnishee, was entitled to a certain credit because of expenditures made with the authority and consent of Wrenn, and that the amount due to Wrenn from Morrison, the garnishee, was "$2,756.81, based upon the total rent for the term." Morrison, the garnishee, was "2,756.81, based a cause of action, and on July 29, 1931, was for a second time denied leave to file an amended declaration. Promptly thereafter Wrenn instituted landlord and tenant proceedings to recover possession of the leased property. He obtained judgment and secured possession on August 10, 1931.

On November 20, 1931, the court below entered judgment for the defendant, Wrenn, on the pleadings and referred the cause to the auditor. The auditor being disqualified, the cause was referred to a special master "to determine the amount of damages, if any, to be awarded to the defendant Thomas F. Wrenn, in the above-entitled cause against the plaintiff, George F. Morrison and the United States Fidelity and Guaranty Company, as surety, by reason of the attachment heretofore issued in the above-entitled cause."

On August 16, 1935, after hearings, the master filed his report. He found that the defendant, Wrenn, was entitled to recover as an item of damage against the plaintiff, and his surety on the attachment bond, "either the rent or its equivalent as compensation for the use and occupancy of the premises from the time the attachment was levied to the time the defendant evicted the plaintiff"; that is, from January 1, 1931 to July 31, 1931, at $325 a month, or $2,275. He further found that "the loss of rent, accrued at the time the writ was issued, as between the defendant as obligee of the bond, and the plaintiff and his surety as obligors, is a damage caused by the wrongful suing out of the attachment and hence recoverable." In other words, that the defendant was entitled to recover as an item of damage the amount of rent due under the lease at the time the writ of attachment and garnishment was issued and served on December 23, 1930, being three months from October 1, 1930, to December 31, 1930, or $975. Finally, he found that defendant, Wrenn, was entitled to compensation for the use and occupation of the premises from August 1, 1931, to August 10, 1931, at which time Morrison was evicted from the premises, being 10/31 of the month at $325, or $104.84, making a total of $3,354.84.

The master recommended judgment against surety in the sum of $3,354.84, with interest, plus costs of reference amounting to $590. Exceptions to the report were overruled by the lower court; the report was ratified and confirmed; and judgment was entered against appellant for the amount referred by the master. The case presented, therefore, relates solely to the liability of the Surety Company.

We come now to the consideration of whether the service of the writ of garnishment upon Morrison, the plaintiff, was legal and effective. Section 445 of the District Code (D.C.Code 1929, T. 24, § 121) provides for the issuance of writs of attachment, "to be levied upon so much of the lands, tenements, goods, chattels, and credits of the defendant as may be necessary to satisfy the claim of the plaintiff." Section 446 (D.C.Code 1929, T. 24, § 122) requires "the marshal to serve a notice on the defendant, if he be found in the District, and on any person in whose possession any property or credits of the defendant may be attached, to appear in said court, * * * and show cause * * * why the property so attached should not be condemned." Section 452 (D.C.Code 1929, T. 24, § 128) provides in part that the attachment may be...