L. Bucki & Son Lumber Co. v. Fidelity & Deposit Co.

• Decision Date: 28 May 1901
• Docket Number: 926.,925
• Citation: 109 F. 393
• Parties: L. BUCKI & SON LUMBER CO. v. FIDELITY & DEPOSIT CO. OF MARYLAND. FIDELITY & DEPOSIT CO. OF MARYLAND v. L. BUCKI & SON LUMBER CO.
• Court: U.S. Court of Appeals — Fifth Circuit

109 F. 393

L. BUCKI & SON LUMBER CO. v. FIDELITY & DEPOSIT CO. OF MARYLAND.

FIDELITY & DEPOSIT CO. OF MARYLAND v. L. BUCKI & SON LUMBER CO.

Nos. 925, 926.

United States Court of Appeals, Fifth Circuit.

May 28, 1901

H Bisbee, for L. Bucki & Son Lumber Co.

R. H Liggett, for Fidelity & Deposit Co.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge.

The proceedings to review which these writs of error were sued out were had in an action brought by the L. Bucki & Son Lumber Company against the Fidelity &amp Deposit Company of Maryland on two attachment bonds given in two actions brought by the Atlantic Lumber Company on October 1, 1897, on which bonds the Fidelity & Deposit Company of Maryland bound itself as surety. The cases in which the bonds were given are sufficiently stated in the decisions of this court as reported in 35 C.C.A. 59, 92 F. 865-867, and 35 C.C.A. 590, 93 F. 765, 766. The purpose of this action on the bonds is to recover all costs and damages sustained by the plaintiff therein in consequence of the improper suing out of the writs of attachment in the cases in which the bonds were given, according to the condition of the bonds and of the statute requiring them. This action was brought in the state court, and removed to the United States circuit court by the defendant. The declaration consists of two count. Each of these counts respectively sets forth the affidavit upon which the writ was issued, the bond, the writ, and a description of the property levied on, and alleges that for several years prior to and one the day the writs were levied the plaintiff had been engaged in doing, and was then engaged in doing, a prosperous business of manufacturing and selling hard pine timber and lumber; that the daily product of its mill was about 100,000 feet; that the interruption, suspension, and destruction of its business and credit consequence of the attachments, and the costs, attorney's fees, and expenses incurred in preparing for and on the trial of the motions to dissolve the attachments, and other damages occasioned thereby, had damaged the plaintiff in stated large amounts; and that the damages sustained had not been paid. The defendant filed numerous pleas, all of which were disposed of on demurrer, except the plea of non damnificatus, and the issues raised by that plea were the only issues of fact tried by the jury. Among these issues of fact the court submitted to the jury the question of the amount of the reasonable attorney's fees which the plaintiff was entitled to recover in words and figures following, to wit:

'In making up your verdict you will find and assess the total amount of damages the plaintiff has sustained, exclusive of reasonable attorney's fees for services rendered by the plaintiff's attorneys in preparing for and on the trial of the motions to dissolve the two writs of attachment; and, in addition to the amount so found, you will also find and assess separately such sum of money as, upon the evidence, you believe to be a reasonable compensation for the services rendered by the plaintiff's attorneys in preparing for the trial and on the trial of the two motions to dissolve the attachments, and in resisting the efforts of the Atlantic Lumber Company to have the judgment dissolving such attachments reversed in the United States circuit court of appeals and in the supreme court of the United States. The court has prepared the form of your verdict as follows: 'We, the jury, find for the plaintiff, and assess its actual damages, exclusive of attorney's fees, at . . . And if the court be of the opinion that, as a matter of law, the plaintiff may recover for such attorney's fees, we further find for the amount of . . . as a reasonable and just fee for the services proven."

Under the foregoing instruction, and other instructions which the court gave, the jury returned a verdict for the plaintiff, assessing its actual damages, exclusive of attorney's fees, at $10,880; and as to the attorney's fees the verdict proceeds in these words: 'And if the court be of the opinion that, as a matter of law, the plaintiff may recover for such attorney's fees, we further find for the plaintiff for the amount of $7,500 as a reasonable and just fee for the services proven.'

On the return of this verdict the plaintiff moved the court to enter judgment in its favor against the defendant for the full amount thereof, including the sum of $7,500 as attorney's fees for services in obtaining a dissolution of the attachments. After due consideration of the matter, the circuit court refused to enter judgment on the verdict for $7,500 attorney's fees, and rendered its judgment in favor of the plaintiff and against the defendant for the sum of $10,895.04 damages, and for costs.

Each of the parties sued out a writ of error. Thirty-seven errors are assigned by the L. Bucki & Son Lumber Company on its writ of error, and 39 by the Fidelity & Deposit Company on its writ of error. The respective assignments together fill 27 pages of the printed records. Of these numerous errors thus elaborately assigned we deem it necessary to notice only one (the thirty-fifth) assigned by the Bucki Company. It is stated in these words:

'The court erred in excluding from the judgment the sum of $7,500 which the jury found specially in their verdict as a reasonable compensation for plaintiff's attorneys for services rendered on the trial of and preparing for the trial of the motion to dissolve the attachment. This was error on the following grounds, to wit: (1) Because the amount of reasonable attorney's fees was an element of damages sustained by the attachments; (2) because it was a question of local law, arising upon a statute of Florida authorizing the issue of attachments, and providing the condition of the bond upon which attachments can issue; (3) because the supreme court of Florida had previously decided that reasonable attorney's fees on such a motion are proper elements of damages, and such decisions of the supreme court of Florida were obligatory upon the federal court.'

The statute of Florida which required the giving of the bond on which these actions are based fixes the condition of the bond as follows: 'Conditioned to pay all costs and damages which the defendant may sustain in consequence of the plaintiff's improperly suing out said attachment. ' Rev. St. 1892, Sec. 1646. The plaintiff in the attachments claimed in the aggregate, and in round numbers, the sum of $85,000, and the writs were so levied as, for a time at least, to stop the operations of a sawmill plant with a capacity of about 100,000 feet of sawed timber and lumber per day. The most vital feature of the levy was the placing of it on the accumulation of logs held on hand to meet the daily consumption of the mill. Of the gravest effect, but somewhat less than that of the levy on the logs, was the levy on the stock of sawed timber and lumber manufactured to meet current contracts. And a very serious effect on the business of the defendant in attachment was the levy of the writs (for so large a claimed indebtedness) on the real estate, including, as it did, the land and fixtures constituting the sawmill plant. The harshness of the use of the extraordinary process of attachment is recognized by the statutes of Florida, which provide that the court to which an attachment is returnable shall always be open for the purpose of hearing and deciding motions to dissolve it. Rev. St. 1892, Sec. 1656. When an attachment is run on property necessary for the conduct of a going business which the levy of the attachment for the time being destroys or suspends, or seriously impedes, nothing can be more natural and urgent from a business point of view than the moving by the defendant in attachment for its dissolution. Such a motion, so urgent and essential, requires for its conduct the services of an attorney of ability and skill, whose reasonable compensation will be proportioned to the interests and questions involved. There could hardly be a more direct consequence of the levy of such a writ than this, and we concur in the earnest suggestion of the counsel for the plaintiff in error that the reasonable compensation to the attorney for presenting and conducting such a motion is as direct a consequence of the levy of the writ as is the cost of the filing of the motion to dissolve it.

It is stated by counsel that the learned judge who presided at the trial announced that the case of Oelrichs v. Spain, 15 Wall. 211, 21 L.Ed. 43, should be followed. That case has some historic interest on account of the subject-matter of the original bill, and the prominence of several of the actors in the transactions out of which the litigation grew. The immediate case was a suit in equity on a bond or bonds given to procure an injunction which restrained the defendant in the injunction proceedings from drawing money from the federal treasury until the further order of the court. In the case in which the bonds were given no motion was made to dissolve the injunction, and no professional services were rendered in obtaining its dissolution distinct from the services required in the conduct of the proceedings to the hearing and on the hearing of the bill on the merits. The writ was never dissolved until and except by the final decree. The payees in the bonds were largely successful on the merits. Counsel for the defendant in error, in his brief, makes this statement:

'In fifteen states and the territory of New Mexico attorney's fees are recoverable on attachment bonds; but in six of those, namely, Louisiana, Kentucky Ohio, Illinois, Minnesota, and New York, they are not recoverable when the defense of the attachment proceedings involved the merits. In two of the

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