Hoffman v. Barlly

• Decision Date: 10 October 1957
• Docket Number: No. 57-111,57-111
• Citation: 97 So.2d 355
• Parties: Joseph HOFFMAN, Appellant, v. Martin BARLLY and Pan American Wholesale Distributors, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 355

97 So.2d 355

Joseph HOFFMAN, Appellant, v.Martin BARLLY and Pan American Wholesale Distributors, Inc., a Florida corporation, Appellees.

No. 57-111.

District Court of Appeal of Florida, Third District.

Oct. 10, 1957.

Dubbin, Blatt & Schiff, Miami, for appellant.

Joseph Pardo, Miami, for appellees.

CARROLL, CHAS., Chief Judge.

Appellant, who was the plaintiff in the lower court, has appealed from a final decree rendered in an equity suit for dissolution of a corporation and accounting.

A receiver was appointed and an injunction granted.Later the receiver was discharged and the injunction dissolved.

The defendants answered, and counterclaimed for an accounting and to recover defendants' attorney fees for wrongful issuance of the order appointing the receiver and granting the injunction.

The final decree denied relief to the plaintiff, dismissed his suit, and charged certain costs against him.On the counterclaim, the decree allowed and taxed defendants' attorney fees, saying defendants'are awarded the fees of their counsel of record now taxed in the amount of Twenty Five Hundred Dollars, and their expenses herein incurred and now taxed in the amount of Five Hundred Twenty ($520.00) Dollars, and the plaintiff and counterdefendant, Joseph Hoffman, is directed to pay said monies to the counterclaimants' counsel of record forthwith; * * *' and the decree then made the attorney's fees and expenses a lien on the plaintiff's interest in the corporation.

Having heard argument and examined the record with reference to the assignments of error, we are of the view that they are without merit except as to the taxing of attorney's fees and charging them against the plaintiff.

There was no agreement or statute to support an allowance or taxing of attorneys' fees.¹

In Brite v. Orange Belt Securities Co., 133 Fla. 266, 182 So. 892, 895, the Supreme Court said:

'Attorney's fees can not be charged, as a general rule, in the absence of statutory authority, unless the defendant is bound for their payment by contract.As stated in 15 C.J. 114:

"The general rule requires each party to the litigation to pay his own counsel fees.Attorney's fees are not allowable in the absence of a statute or in the absence of some agreement or stipulation specially authorizing the allowance thereof, and it has been held that the rule applies equally in Courts of Law and in Courts of Equity."

See, also, Gregory v. Woodbery, 53 Fla. 566, 43 So. 504;Bass v. Alderman, 82 Fla. 490, 90 So. 378;State ex rel. Royal Ins. Co. v. Barrs, 87 Fla. 168, 99 So. 668;Webb v. Scott, 129 Fla. 111, 176 So. 442;Dorner v. Red Top Cab & Baggage Co., 160 Fla. 882, 37 So.2d 160;andPhoenix Indemnity Co. v. Union Finance Co., Fla...