Bondy v. Royal Indem. Co.
| Decision Date | 31 October 1938 |
| Citation | 134 Fla. 776,184 So. 241 |
| Parties | BONDY et al. v. ROYAL INDEMNITY CO. |
| Court | Florida Supreme Court |
Error to Circuit Court, Lee County; George W. Whitehurst, Judge.
Action by Leo J. Bondy as executor of the estate of Marion S. Wolfe deceased, and another, against the Royal Indemnity Company on an attachment bond, on which the defendant was surety. Judgment sustaining a demurrer to plaintiffs' amended declaration, and plaintiffs bring error.
Affirmed.
Henderson & Franklin and Parker Holt, all of Fort Myers, for plaintiffs in error.
No appearance for defendant in error.
This case is on writ of error to a final judgment entered on a demurrer sustained to the amended declaration.
Leon J Bondy, as executor of the estate of Marion S. Wolfe deceased, and Clarence F. Simmons, filed their amended declaration against the Royal Indemnity Company on an attachment bond, on which the defendant corporation was surety.
The amended declaration alleged in substance that on June 18 1928, J. E. Hendry and A. W. Kelly, partners in trade, doing business as the Everglades Nursery Co., instituted suit in the Circuit Court of Lee County, Florida, against Marion S. Wolfe and Clarence F. Simmons, partners in trade, doing business as Wolfe and Simmons; that said Wolfe and Simmons were residents of New York and the owners in fee simple of certain described lands (description omitted) in Lee County, Florida, and since they were not in the jurisdiction, said Hendry and Kelly caused a writ of attachment to issue against said described lands, and on June 18, 1928, filed an attachment bond, in the amount of $2,750, wherein said Hendry and Kelly, partners in trade, doing business as the Everglade Nursery Co., were principals, and Royal Indemnity Co. was surety, conditioned that if said principals shall well and truly pay all costs and damages said Wolfe and Simmons, partners in trade, doing business as Wolfe and Simmons, may sustain by said principals improperly suing out said attachment, then said obligation to be void, else to remain in full force and effect; that at the trial of said suit, after the parties had submitted their evidence, the court found that plaintiffs had failed to prove the existence of the debt for which said writ of attachment was sued out and directed the jury to return a verdict in favor of defendant; that at no time were said Wolfe and Simmons, partners in trade, doing business as Wolfe and Simmons, ever indebted to said Hendry and Kelly, partners in trade, doing business as the Everglades Nursery Co., that said writ of attachment was improperly and wrongfully issued, and as a proximate result thereof said Wolfe and Simmons sustained large damages (see bill of particulars); that said plaintiffs in attachment have not paid said costs and damages nor any part thereof, and said amount with interest thereon, remains unpaid and owing; that said Marion S. Wolfe heretofore departed this life, and Leo J. Bondy duly qualified as the executor of his estate in New York, and on January 8, 1937, said Leo J. Bondy, was appointed ancillary executor of said estate in Florida, by the County Judge of Lee County, Florida. The declaration claimed $2,500 damages.
'Bill of Particulars.
fees in defending suit of J.
Mr. Simmons, covering
various trips from New York
to Florida and return, to
attend the trials of the case
of J. E. Hendry and A. W.
A demurrer was filed to this amended declaration, containing, among others, the grounds that (1) allowance for expenses and attorney's fees in connection with the wrongful attachment must be limited to the expenses and attorney's fees in connection with the attachment itself, and no allowance can be made for attorney's fees or expenses in connection with defense of the principal action; and (2) Leo J. Bondy, as executor of the estate of Marion S. Wolfe, deceased, is improperly joined as plaintiff.
On September 27, 1937, the court entered an order sustaining the demurrer.
On February 28, 1938, the defendant made a motion that the court enter final judgment on the demurrer as sustained.
On the same date, final judgment was entered in favor of the defendant, the judgment reciting that 'plaintiffs decline to amend further their declaration and insist upon same.'
The sole question presented by plaintiffs in error is where property of non-residents is attached, the sole ground of attachment being the non-residence of the defendants, are the expenses of the trial, including attorney's fees, recoverable as damages for the improper and wrongful suing out of the attachment?
'The weight of authority supports the rule that in actions on attachment bonds or in tort for damages because of the wrongful suing out of an attachment, reasonable attorney's fees constitute a proper element of damages, in so far, at least, as such fees are for services rendered in relation to the attachment itself, as distinguished from services relating to the defense of the action on its merits.' 25 A.L.R. 580, note, citing cases from U.S. Supreme Court and Federal Courts, and from Alabama, California, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, New York, Ohio, Oklahoma, Utah, Washington and Wisconsin, the Florida citation being Gonzales v. De Funiak Havana Tobacco Co., 41 Fla. 471, 26 So. 1012; see also 71 A.L.R. 1459, note, supplementing the above annotation and adding decisions from Oregon, South Dakota and Wyoming.
'As a general rule, attorney's fees for defending the main suit on its merits cannot be recovered as an element of damages for a wrongful attachment, the recovery of such fees being limited to those for services relating to the attachment proper.' 25 A.L.R. 587, note, citing cases from Colorado, Florida, Illinois, Iowa, Kentucky, Louisiana Minnesota, Missouri, New York, Ohio, Utah and Washington, the Florida...
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Martha A. Gottfried, Inc. v. Amster
...and slander of title, where courts have found the award to be uniquely appropriate to the cause of action. See Bondy v. Royal Indemnity Co., 134 Fla. 776, 184 So. 241 (1938); Tidwell v. Witherspoon, 21 Fla. 359 (1885); Susman v. Schuyler, 328 So.2d 30 (Fla. 3d DCA 1976); Glusman v. Lieberma......
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Susman v. Schuyler, s. 75--188
...legion. However, there are other instances in which attorney's fees are recoverable, such as wrongful attachment, Bondy v. Royal Indemnity Co., 1938, 134 Fla. 776, 184 So. 241, false imprisonment, City of Miami Beach v. Bretagna, Fla.App.1966, 190 So.2d 364, and malicious prosecution, Tidew......
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Glusman v. Lieberman
...legion. However, there are other instances in which attorney's fees are recoverable, such as wrongful attachment, Bondy v. Royal Indemnity Co., 1938, 134 Fla. 776, 184 So. 241, false imprisonment, City of Miami Beach v. Bretagna, Fla.App.1966, 190 So.2d 364, and malicious prosecution, Tidwe......