Mars v. Germany

• Decision Date: 14 April 1924
• Docket Number: 24076
• Citation: 135 Miss. 387,100 So. 23
• Court: Mississippi Supreme Court
• Parties: MARS v. GERMANY et al. [*]

100 So. 23

135 Miss. 387

MARS v. GERMANY et al. ^[*]

No. 24076

Supreme Court of Mississippi

April 14, 1924

Division A

Suggestion of Error Overruled in Part and Sustained in Part May 19, 1924.

APPEAL from circuit court of Neshoba county, HON. F. E. LEACH Special Judge.

Action between W. H. Mars and Bill Germany and others. From the judgment rendered, the former appeals. Affirmed, as reduced on suggestion of error.

Judgment affirmed.

Cassidy & Potter and Richardson & Pearce, for appellee, on suggestion of error.

In the case at bar the only damages recovered were attorney's fees in a replevin suit to recover property seized under an attachment for rent. In Thornton v. Gardner, 99 So. 131, it was expressly held that except in cases provided for by section 2855, Code of 1906, section 2353, Hemingway's Code, no damages whatever are recoverable.

In other words the only damages recoverable in a case of this kind are the double damages provided for by the statute. Germany, the appellee, was the plaintiff in the case and did not ask for the statutory damages in his declaration, nor was the question submitted to the jury as to the good faith of Mars in bringing the suit.

In the absence of a case wherein double damages may be recovered, attorneys' fees cannot be recovered in a suit of this nature. This has been expressly held in the recent case of Thornton v. Gardner.

"Where there is no evidence from which the jury might infer fraud, malice, oppression, or willful wrong, then no attorney's fee is recoverable." Cowden v. Lockridge, 60 Miss. 385; Carraway v. Wallace (Miss.), 17 So. 930; Taylor v. Morton, 61 Miss. 24."

The case should be reversed to the extent of the damages awarded which were attorney's fees, and the appellee should be allowed only nominal damages as in the Thornton case.

OPINION

HOLDEN, J.

ON SUGGESTION OF ERROR.

This case was recently affirmed without an opinion by this division. The suggestion of error now before us presents a new point which was not made by the appellant on the main presentation, and that is that the recovery of one hundred and twenty-five dollars by the appellees as attorney's fees and expenses in attending the trial was wrongfully allowed by the lower court because the defendant in the replevin suit cannot recover this character of damages, unless willfulness, malice, or fraud is shown.

The case of Thornton v. Gardner, 134 Miss. 485 99 So. 131, recently decided by Division B of this court, expressly sustains the point made by the appellant on this suggestion of error. The two cases are practically identical, and we shall follow that decision and affirm the lower court in the case before us in all respects, except that the recovery of one hundred...