Bernheim Bros. & Uri v. Brogan

• Decision Date: 11 February 1889
• Citation: 6 So. 649,66 Miss. 184
• Parties: BERNHEIM BROS. & URI v. JOHN T. BROGAN
• Court: Mississippi Supreme Court

6 So. 649

66 Miss. 184

BERNHEIM BROS. & URI v. JOHN T. BROGAN

Supreme Court of Mississippi

February 11, 1889

October 1888

APPEAL, from the circuit court of Clay county. HON. LOCK E HOUSTON, Judge.

The facts are stated in the opinion.

Judgment reversed.

Clifton, & Eckford, for appellants.

We submit that the true rule should be, in all these cases, to exclude the allowance of attorneys' fees as an element of actual damages, and that such fees should only be allowed as vindictive or exemplary damages except when specially provided for by statute. Waples' Attach. 452, 453; Oelrichs v. Spain, 15 Wall. 211; Turner v. Miller, 42 Tex. 418; Stauffer v. Garrison, 61 Miss. 67; Cowden v. Lockridge, 60 Ib. 385; Brinker v. Leinkauf, 64 Ib. 240.

Attorneys' fees are allowed, of course, on injunction bonds in this court only by the rule stare decisis. In all other cases of statutory bonds they are disallowed except in cases proper for punitive damages. If fees are not allowed on bonds where the obligors contract to pay actual damages, certainly the court will not allow them as an element of cost or by way of costs, unless the statute had by express language so provided.

The "additional compensation" "in exceptional cases" is allowed the garnishee by the court "for his attendance." See code, § 2448.

This is to cover any additional expense to mileage he has incurred in going to and from court. The compensation is recoverable in the nature of costs and is to be taxed in the bill of costs. In ordinary cases the statute fixes the costs. In exceptional cases the court fixes the allowance. In all cases of damages arising out of tort the right to trial by jury is guaranteed by the constitution. The party affected can only waive this right by and with the consent of the court. Code, § 1705.

Counsel for the garnishee have furnished several authorities from other states in which a small fee was allowed the garnishee to pay counsel fees for the preparation of an answer; or to see that the proper order discharging him has been entered. This was under statutes which permitted such fees, and the allowance was not limited, as it is in our state, to compensation "for attendance."

We do not think our statute contemplates an allowance for preparation of the answer, as the code prescribes a form for an answer and requires the officer executing the process to give the garnishee a written form of the answer he is to make. Code, § 2443.

Certainly the most appellee can claim is a small fee for the preparation of his answer, or for having a proper order of discharge. We find no authorities that go beyond this.

The same question is presented in the case of A. Senior & Sons v. Brogan, appealed from the same court, and to be decided at this term.

Barry & Beckett and Fox & Roane, for appellee.

No bill of exceptions was taken, and it is to be presumed that the allowance was right, if under any circumstances the court had the power or discretion to make the allowance.

The prompt garnishee is allowed by the code the pay and mileage of a juror, "and in exceptional cases rendering it proper the court may allow the garnishee reasonable compensation, additional to the foregoing and to be obtained in the same way." This mode of obtaining it is out of the debt or effects in his possession, or if he has no debt or effect, then "against the plaintiff in attachment."

Even if there had been a bill of exceptions the allowance is discretionary with the court, and it is not properly subject to review. It is allowable without the intervention of a jury, and the judgment recites on its thee that it is, in the words of the statute, "a reasonable allowance," and that this is a "proper case" in which to allow it. Johnston v. Blinks, 68 Tex. 495; Hawkins v. Graham, 128 Mass. 20; Waples Attach. 385, 386, 387; Mattingly v. Boyd, 20 How. 128, 133; O'Reilly v. Cleary, 8 Mo.App. 186; Griffiths v. Stackmuller, 14 Phila. 236, Vandusen v. Schrader, Ib. 132; McKelvy and Sterrett's Appeal, 105 Pa. 615.

OPINION

COOPER, J.

Bernheim Bros. & Uri brought suit by attachment against their debtor T. O'Flinn, and summoned John T. Brogan to answer as garnishee. The garnishee answered that he was not indebted to the defendant, and had none of his effects in his hands. This answer was controverted by the plaintiffs (who had recovered judgment against the defendant in attachment), and on the trial the issue was found in favor of Brogan. Thereupon he moved the court to allow him an attorney's fee of two hundred and forty-five dollars as compensation for the expense to which h...