James v. Cannell

• Citation: 237 P. 8,135 Wash. 80
• Decision Date: 19 June 1925
• Docket Number: 18957.
• Court: United States State Supreme Court of Washington
• Parties: JAMES v. CANNELL et al.

237 P. 8

135 Wash. 80

JAMES v. CANNELL et al.

No. 18957.

Supreme Court of Washington

June 19, 1925

Department 1.

Appeal from Superior Court, Spokane County; Lindsley, Judge.

Action by Theresa James against Claire Cannell and others. Dissatisfied with the judgment rendered in her favor plaintiff, appeals. Reversed and remanded.

Askren J., dissenting.

John M Gleeson and Harold M. Gleeson, both of Spokane, for appellant.

Garrecht & Twohy, of Spokane, for respondents.

BRIDGES J.

The respondent Cannell garnished certain funds of the appellant which were deposited to her credit in a Spokane bank. Shortly thereafter the garnishment was discharged upon the motion of the appellant because it had been wrongfully sued out. She then brought suit on the garnishment bond seeking to recover damages for loss of time and for labor expended in endeavoring to straighten out her entanglement because of the typing up of her funds in the bank, and to recover certain sums which she had paid, or had become obligated to pay, to attorneys employed by her for the especial purpose of, and who succeeded in, having the writ of garnishment discharged. The trial court instructed the jury to bring in a verdict of $2.60, which was done, and judgment was entered thereon. One dollar and sixty cents of this amount seems to have been for some costs that the appellant had paid in connection with the discharge of the garnishment, and it is probable that the other $1 was to cover interest on the money garnished, from the time of the garnishment until its discharge, a period of six or eight days.

At the time of the issuance of the writ of garnishment the respondent gave the usual statutory bond, which provided that, if she should 'prosecute said action and pay all damages and costs that may be adjudged' against her for the suing out of the writ of garnishment, then the bond should become void; otherwise it was to remain in full force and effect. Section 681, Rem. Comp. Stat., is with reference to garnishment bonds, and is in substantially the words of the bond given in this case. It appears that the appellant prior to the garnishment, had issued some checks against her money in bank, and that thereafter she was required to expend some time and effort in adjusting her finances so as to meet the outstanding checks. She seeks to recover, as damages, her loss of time in this respect.

It is the general rule in cases of this character that the recoverable damages are only those which naturally flow from the result of the garnishment, and that unusual and speculative damages are not recoverable. It seems to us that the item of the appellant's time expended in adjusting her finances to meet the situation would be entirely too speculative to justify recovery therefor. Generally speaking, the damage resulting from the tying up by garnishment of funds is the loss of interest on the funds during that period. There may, of course, under special circumstances, be additional damage, such as the actual loss of the money, or, possibly, loss of profits which would have been made had the money not been garnished. Under the circumstances shown here the only element of damage which may be considered as having naturally flowed from the wrongful garnishment is the loss of interest (which would be but an insignificant sum), and possibly the money expended in procuring the release of the garnishment. It is this matter of attorney's fees which is the most important and interesting question in this case.

Where a temporary injunction or restraining order has been issued, the statute provides for the giving of a bond, 'conditioned to pay all damages and costs which may accrue by reason of the injunction or restraining order.' Section 725, Rem. Comp. Stat. Courts have generally held that, where the person against whom the injunction has been issued has employed attorneys to seek its dissolution, and they have succeeded in doing so without a trial of the case upon its merits, in a suit upon the injunction bond, such person is entitled to recover such sum as he may have paid, or obligated himself to pay, his attorneys for their services in that connection, not exceeding, of course, a reasonable amount. Generally speaking, these cases are based on an assertion made by Mr. High, in his work on Injunctions, to the effect that the commonly accepted rule is that reasonable compensation paid as counsel fees in procuring the dissolution of an injunction may be recovered in an action on the bond. 2 High, Injunctions (3d Ed.) 1685. It also has been generally held that such fees, in order to be allowable as damages, must be those connected with the motion or other similar proceeding for the dissolution of the injunction and not those covering the defense of the action on its merits. This court has allowed attorney's fees in suits on injunction bonds in the following cases: Donahue v. Johnson, 9 Wash. 187, 37 P. 322; Steel v. Gordon, 14 Wash. 521, 45 P. 151; Berne v. Maxham, 82 Wash. 235, 144 P. 23.

It would seem that the rule laid down by Mr. High in injunction cases ought to be applicable also to attachments and garnishments. It is true that, while the bond provided for by our attachment statute is for all costs and damages which may be sustained by reason of the attachment, it also provides that, in a suit upon the bond, reasonable attorney's fees are to be considered a part of the damage. Sections 652 and 654, Rem. Comp. Stat. Our statutory garnishment bond is substantially the same as the attachment and injunction bond, but there is no statutory provision to the effect that attorney's fees shall be allowed as part of the damages. But, if we examine the authorities, we will see that the courts generally have held that such attorney's fees in attachment cases are recoverable as damages, where the statute makes no express provision therefor. It is held that the attorney's fee is a necessary expense incurred because of the suing out of the attachment and to get rid of it, and that for that reason it constitutes a part of the damages suffered. The following are some of the cases holding that, in the absence of a governing statute, attorney's fees paid, or agreed to be paid, in securing the discharge of an attachment, may be recovered as damages in a suit upon the attachment bond. Swift v. Plessner, 39 Mich. 178; Raymond Bros. v. Green & Co., 12 Neb. 215, 10 N.W. 709, 41 Am. Rep. 763; Behrens v. McKenzie, 23 Iowa, 333, 92 Am. Dec. 428; State to use of Burton v. McKeon, 25 Mo.App. 667; Wilson v. Root, 43 Ind. 486; State to use of Hayden v. McHale, 16 Mo.App. 478; Peters v. Snavely-Ashton, 144 Iowa, 147, 120 N.W. 1048, 122 N.W. 836; Tripp Bros. v. Hymer (Ky.) 99 S.W. 330; 1 Shinn, Attachments and Garnishments, § 190 et seq.

If the attorney's fees may be collected as a part of the damages for the wrongful issuance of an injunction or attachment, there is no reason what we can see why they should not also be recoverable in the wrongful levy of a writ of garnishment. While we have not found many cases of this character in connection with garnishment (probably because in most of the states garnishment is but a part of the process of attachment), we have run across one or two which hold such a recovery can be had. Collins v. Myers, 30 Ga.App. 151, 117 S.E. 265; McIntosh v. Knox, 40 Nev. 403, 165 P. 337.

Respondent insists that this court has, in effect, held that attorney's fees are not recoverable in a case of this character, citing Larson v. Winder, 14 Wash. 647, 45 P. 315; Trumble v. Trumble, 26 Wash. 133, 66 P. 124; McGuinness v. Hargiss, 56 Wash. 162, 105 P. 233, 21 Ann. Cas. 220; Long v. S mith, ...