Baird v. Liepelt, Gen. No. 64-146

Decision Date31 August 1965
Docket NumberGen. No. 64-146
Citation62 Ill.App.2d 154,210 N.E.2d 1
PartiesArch BAIRD, Appellee, v. Leonard LIEPELT and Hartford Accident and Indemnity Company, Appellants.
CourtUnited States Appellate Court of Illinois

Nathan Shefner, Chicago, for appellants.

Russell & Bridewell, Chicago, for appellee.

THOMAS J. MORAN, Justice.

As a result of an attachment proceeding filed by Leonard Liepelt in 1956, certain real estate of Arch Baird was levied upon and sold to Liepelt at a Sheriff's sale. The attachment affidavit filed by Liepelt alleged that Baird was a nonresident of Illinois and that he had departed the State with the intention of removing his effects. Baird was served by publication, and never appeared in the case prior to the Sheriff's sale. Thereafter, Baird filed a chancery action seeking to set aside the sale of the real estate, and also filed a petition under Section 72 of the Practice Act, Ill.Rev.St.1963, c. 110, § 72 in the original proceeding, seeking the same relief. These actions were consolidated for trial, and Baird was successful in the trial court. The court found that both of the allegations set forth in the attachment affidavit were false, and that, therefore, the entire proceeding had been void. Liepelt appealed to the Supreme Court, which affirmed the trial court. Liepelt v. Baird, 17 Ill.2d 428, 161 N.E.2d 854 (1959).

After the affirmance by the Supreme Court, Baird filed this action against Liepelt and Hartford Accident & Indemnity Company, the surety on the $2,000 attachment bond, seeking to recover the attorney's fees expended by him in setting aside the wrongful attachment. The trial court entered a summary judgment in favor of Baird on the question of liability, and set the case down for hearing on the question of damages. At the conclusion of the hearing, the court entered judgment in the total amount of $5,000 ($2,000 against Hartford; $5,000 against Liepelt, less any amount collected from Hartford), from which Liepelt and Hartford bring this appeal.

Appellants' first contention is that a successful plaintiff cannot bring an independent action to recover the attorney's fees incurred in the first action. Generally speaking, this is true. However, wrongful attachment has been recognized as a tort, and attorney's fees incurred in setting aside the attachment are a proper element of damages in the tort action. Damron v. Sweetser, Caldwell & Co., 16 Ill.App. 339, 344, 345 (4th dist. 1885); Twidwell v. Smith, 158 Ill.App. 142, 145-146 (3rd dist. 1910); First State Bank of Pond Creek v. Clark, 202 Ill.App. 283, 288 (1st dist. 1916); Foley Brokerage Co. v. Feldman Bros., 330 Ill.App. 372, 375, 71 N.E.2d 354 (1st dist. 1947) (garnishment); 3 I.L.P., Attachments §§ 161, 169. The foregoing authorities also establish that the tort action is in addition to the right to sue on the attachment bond. Thus, Baird had an action against Liepelt in tort and against Hartford on its bond for the reasonable attorney's fees incurred in setting aside the wrongful attachment.

The cases cited by appellants for the proposition that a successful litigant cannot recover his attorney's fees in a separate action, Ritter v. Ritter, 381 Ill. 549, 46 N.E.2d 41 (1943) and Boss v. Coe Inv. Co., 45 Ill.App.2d 417, 195 N.E.2d 735 (4th dist. 1964), are distinguishable, inasmuch as they were neither tort actions brought for wrongful attachment nor actions brought to recover under the terms of a bond.

Appellants' next point is that, by not claiming attorney's fees in the original chancery action brought to set aside the attachment, Baird waived the right to seek them in a later action. Appellants' theory is that, since a court of equity has power to do complete justice between the parties and determine all matters germane to the controversy, the matter of attorney's fees could have been determined by the court. We do not agree with this contention. A substantial portion of the attorney's fees incurred by Baird were attributable to the appeal taken by Liepelt from the order setting aside the attachment. The trial judge in that case was obviously not in a position to award any damages based on...

To continue reading

Request your trial
10 cases
  • Kauth v. Hartford Ins. Co. of Illinois
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 19, 1988
    ... ... 92 (1st Dist.1978); Baird v. Liepelt, 62 Ill.App.2d 154, 210 N.E.2d 1 (2d Dist.1965). Likewise, ... ...
  • Evink v. Pekin Ins. Co.
    • United States
    • United States Appellate Court of Illinois
    • February 29, 1984
    ... ... where defendant, an attorney, negligently handled plaintiff's case; Baird v. Liepelt (1965), 62 Ill.App.2d 154, 156-57, 210 N.E.2d 1, awarding ... ...
  • Jacobson v. Leisinger
    • United States
    • South Dakota Supreme Court
    • March 12, 2008
    ... ... Id. at 507; see also Baird v. Liepelt, 62 Ill.App.2d 154, 156-57, 210 N.E.2d 1, 2 (1965). Here, ... ...
  • Pacemaker Food Stores, Inc. v. Seventh Mont Corp.
    • United States
    • United States Appellate Court of Illinois
    • May 16, 1986
    ... ... where defendant, an attorney, negligently handled plaintiff's case; Baird v. Liepelt (1965), 62 Ill.App.2d 154, 156-57, 210 N.E.2d 1, awarding ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT