Luger v. Windell

• Decision Date: 20 January 1923
• Docket Number: 17499.
• Citation: 212 P. 276,123 Wash. 279
• Court: Washington Supreme Court
• Parties: LUGER v. WINDELL (NEW AMSTERDAM CASUALTY CO., Garnishee.

212 P. 276

123 Wash. 279

LUGER v. WINDELL (NEW AMSTERDAM CASUALTY CO., Garnishee.

No. 17499.

Supreme Court of Washington

January 20, 1923

Department 1.

Appeal from Superior Court, Spokane County; Bruce Blake, Judge.

Separate actions by J. G. Luger and by Fletcher Luger, by his guardian ad litem, J. G. Luger, against J. D. Windell, wherein the New Amsterdam Casualty Company was garnishee. From an order allowing attorney's fees to the garnishee on dismissal of the garnishment proceedings, plaintiffs appeal. Affirmed.

E Eugene Davis, of Spokane, and Fred Miller, of Colfax, for appellants.

Danson Williams & Danson, of Spokane (R. E. Lowe, of Spokane, of counsel), for respondent.

MITCHELL J.

J. G Luger recovered a judgment against one Windell in the superior court. Thereupon, at the instance of Luger, a writ of garnishment was served on the New Amsterdam Casualty Company under the allegation that it was indebted to, or had in its possession the property of, Windell which should be made applicable in satisfaction of the judgment. The casualty company answered the writ denying any indebtedness or that it held any property belonging to Windell. The answer was controverted by a reply on the part of Luger. Upon a trial of the issues thus made, judgment was entered in favor of Luger and against the casualty company. It appealed to this court with the result that the judgment was reversed. Luger v. Windell, 116 Wash. 375, 199 P. 760.

Thereafter in the superior court, the casualty company made an application to the court to fix the attorney's fees to be allowed it as against Luger, the plaintiff in the garnishment proceedings, and for a judgment dismissing the garnishment proceedings. Upon hearing the application, counsel for both parties being present, the trial court entered a judgment referring to the application and Luger's answer thereto, and reciting in the judgment as follows:

'And said matter having been submitted to the court and no evidence having been introduced other than the records in this case and the admission that the said garnishee defendant had paid its attorneys for the services in this court in the said garnishment proceedings the sum of $150 and in the Supreme Court the sum of $225, and the parties having agreed that this court, before which the garnishment proceedings was tried might determine the reasonable amount of attorney's fees, if any, to be allowed the garnishee defendant from its own knowledge without the introduction of evidence, and the court now having found that the sum of $375 is a reasonable attorney's fee to be allowed to garnishee defendant, and it further appearing that the costs taxes in the Supreme Court have not been paid to nor received by the garnishee defendant:

'It is therefore ordered that this proceeding instituted by plaintiffs against said New Amsterdam Casualty Company, a corporation, as garnishee defendant be and the same is dismissed with prejudice, and that the said garnishee defendant do have and recover of and from said J. G. Luger and said

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