Moseley v. Fidelity & Deposit Co. of Maryland

• Court: Idaho Supreme Court
• Writing for the Court: VARIAN, District Judge.
• Citation: Moseley v. Fidelity & Deposit Co. of Maryland, 189 P. 862, 33 Idaho 37 (Idaho 1920)
• Decision Date: 10 April 1920
• Parties: GEORGE H. MOSELEY, Respondent, v. THE FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Corporation, Appellant

189 P. 862

33 Idaho 37

GEORGE H. MOSELEY, Respondent, v. THE FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Corporation, Appellant

Supreme Court of Idaho

April 10, 1920

ATTACHMENT-SUMMONS-DEFECTIVE SERVICE-ATTACHABLE INTEREST-RECOVERY ON ATTACHMENT BOND-MEASURE OF DAMAGES.

1. Any defect in the service of summons is cured by the subsequent appearance and answer of the defendant.

2. Where the legal title to attached real property was in the United States at the date of the levy, and the equitable title was in one who was under contract to convey the property to the de- fendant in the attachment suit and another, the defendant had an attachable interest in such real property.

3. Under the statute of this state one against whom an attachment has wrongfully issued is entitled to recover as a part of his damages therefor from the surety on the attachment bond the necessary expenses incurred by him in defending against such attachment.

4. Where plaintiff and defendant in an attachment suit were both nonresidents of the state at the date of the commencement of the action, the attachment proceeding alone being the effective cause of bringing the defendant into the Idaho court, and the defendant having thereafter been compelled to try the case on its merits in order to purge his property of the attachment lien, upon winning such suit he is entitled to recover from the surety on the attachment bond, as proper damages, his necessary expenses, court costs and attorney fees incurred in defending the attachment suit.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Action on attachment bond. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Wyman &amp Wyman, for Appellant.

Where an attachment is dissolved upon motion, the weight of authority favors the rule that reasonable attorney's fees and disbursements incurred upon such motion are properly recoverable, although there are many cases holding the contrary. (Jacobus v. Monongahela Nat. Bank, 35 F 395; Patton v. Garrett, 37 Ark. 605; Commonwealth v. Meyer, 170 Pa. 380, 32 A. 1044; First Nat. Bank of Chillicothe v. McSwain, 93 S.C 30, Ann. Cas. 1914D, 809, 75 S.E. 1106; Stringfield v. Hirsch, 94 Tenn. 425, 29 S.W. 609.)

Where such damages are allowed, they are such as arise out of the attachment itself and do not include fees and expenses incurred in defending the main suit. (White v. Wyley, 17 Ala. 167; Elwell v. Seattle, S. Fish Co., 2 Alaska, 617; Johnson v. Farmers' Bank, 4 Bush (Ky.), 283; Trapnell v. McAfee, 3 Met. (Ky.) 34, 77 Am. Dec. 152; McClure v. Renaker et al., 21 Ky. Law Rep. 360, 51 S.W. 317; Goodbar v. Lindsley, 51 Ark. 380, 14 Am. St. 54, 11 S.W. 577; Hilfrich v. Meyer, 11 Wash. 186, 39 P. 455; Drake on Attachments, sec. 176; Shinn on Attachment and Garnishment, sec. 190, p. 338; Johnson v. Farmers' Bank, 4 Bush (Ky.), 283; Alexander v. Jacoby, 23 Ohio St. 358; Wade on Attachment, 301.)

This is true even where jurisdiction is obtained solely by attaching the property of a nonresident defendant who subsequently appeared and defended the action. (Gonzales v. De Funiak Havana Tobacco Co., 41 Fla. 471, 26 So. 1012; Frost v. Jordan, 37 Minn. 544, 36 N.W. 713.)

Only those damages can be allowed that are the proximate and natural result of the attachment. (Thompson v. Webber, 4 Dak. 240, 29 N.W. 671; State v. Thomas, 19 Mo. 613, 61 Am. Dec. 580; Floyd v. Anderson, 36 Okla. 308, Ann. Cas. 1915A, 348, 128 P. 249, 43 L. R. A., N. S., 788; Elder v. Kutner, 97 Cal. 490, 32 P. 563; McDonald v. Fett, 49 Cal. 354; Drake on Attachment, sec. 175.)

Martin & Cameron, for Respondent.

Where trial of the main action is rendered necessary to dissolve an attachment, the expenses of the trial are recoverable by the attachment defendant in an action on the attachment bond. The fact that the attachment defendant did not move to set aside the writ does not preclude recovery. (Drake on Attachment, sec. 176; Straschlitz v. Unger, 153 N.Y.S. 118; Balinsky v. Gross, 72 Misc. 7, 128 N.Y.S. 1062; Epstein v. United States Fidelity & G. Co., 29 Misc. 295, 60 N.Y.S. 527.)

Counsel fees incurred in defending the attachment may be recovered on the attachment bond as an element of damages. (Plymouth Gold Min. Co. v. United States Fidelity Co., 35 Mont. 23, 10 Ann. Cas. 951, 88 P. 565; Wilson v. Root, 43 Ind. 486; Trapnall v. McAfee, 3 Met. (Ky.) 34, 77 Am. Dec. 152; State v. McHale, 16 Mo.App. 478; Territory ex rel. Lyser v. Rindskopf, 5 N.M. 93, 20 P. 180, and cases cited; 4 Cyc. 885; Parish v. Van Arsdale etc. Co., 92 Kan. 286, Ann. Cas. 1916B, 981, 140 P. 835; Vesper v. Crane Co., 165 Cal. 36, 130 P. 876, L. R. A. 1915A, 541; State ex rel. Pinkley v. Yount, 186 Mo.App. 258, 172 S.W. 431; Kennedy v. Meacham, 18 F. 312; Miller v. Donovan, 13 Idaho 735, 13 Ann. Cas. 259, 92 P. 991; Waples on Attachment and Garnishment, secs. 1027, 1033; Bash v. Howald, 27 Okla. 462, 112 P. 1125; Van Sickle v. Franklin (Okl.), 162 P. 950.)

VARIAN, District Judge. Morgan, C. J., and Rice, J., concur.

OPINION

VARIAN, District Judge.

--Charles F. Glaeser filed a complaint against respondent in the district court in Lincoln county, October 24, 1913, and on the same day filed an affidavit for attachment and undertaking, with appellant as surety, conditioned as provided by the statute. Both Glaeser and Moseley, the respondent, were residents of Chicago, Illinois, at the time the attachment was brought. The grounds for attachment, as appears from the affidavit, was the non-residence of the defendant. The writ issued forthwith and on October 25, 1913, was levied upon "all the right, title, claim and interest" of the defendant in and to certain real property standing in the name of Julia N. Olmstead on the records of Lincoln county. All moneys, etc., belonging to the defendant in the First National Bank of Jerome were garnished. The bank answered the garnishment, stating, in effect, that it held in escrow certain agreements to convey lands to one Hall and the respondent, Moseley, separate parcels to each and separate parcels to them jointly; that the payments under said agreements had not been made and the deeds were undelivered; that the money to make the payments had been deposited by Hall in the escrow. The land attached is embraced within the escrow contracts between Julia N. Olmstead and respondent and Hall.

The evidence shows that the initial payments on the purchase price had been made by respondent and Hall, the notes and mortgages representing the deferred payments to Mrs. Olmstead had been executed by Moseley and Hall and their wives, and deposited in the escrow together with the deeds to them from Mrs. Olmstead. While the usual receiver's final receipt had been issued to her, Mrs. Olmstead had not received patent at the date of the escrow and patent did not issue until January 24, 1914. The escrow proceeding was resorted to by the parties for the protection of the parties until patent should issue.

October 24, 1913, summons issued and was returned unserved October 27, 1913. Plaintiff's attorney filed affidavit praying service of an alias summons October 29, 1913, and order of publication made by the clerk. No alias summons in fact ever issued. It is inferred that the original summons was marked "Alias Summons" and published. On December 15, 1913, respondent, Moseley, answered to the merits in the attachment action. No motion to dissolve the attachment was made.

On December 16, 1913, Glaeser, plaintiff in the attachment suit, acting through his attorney of record, and the First National Bank of Jerome, through its attorney, entered into a stipulation to the effect that the money, notes and mortgages held by it under the escrow agreement be delivered to Mrs. Olmstead under said escrow agreement and that the deeds held by it under the escrow agreement conveying land to George H. Moseley, respondent here, be recorded by the garnishee in the county recorder's office; that the deeds to Hall be delivered to him; and the money paid to Mrs. Julia Olmstead--all in case the parties "complete and fulfil" the escrow agreement. It was further stipulated that on completion of the contract and distribution of the money and papers and recording of the deeds to Moseley, the garnishee "be released from any and all liability by reason of such attachment and garnishment." The attachment lien was not released as to the real property. On the same date, December 16, 1913, Hall and Moseley conveyed by warranty deed the lands contracted from Julia N. Olmstead to the Jonothan Valley Orchards Company, a corporation. Moseley testified that this conveyance was made subject to the attachment lien and that the consideration therefor was paid in stock of the corporation issued to them when they executed the deeds. Respondent Hall and one Bewes owned all of the issued stock of the Jonothan Valley Orchards Company at that date.

On October 13, 1914, the attachment suit was tried to a jury and resulted in a verdict for the defendant, Moseley, and judgment was on that date entered against the plaintiff, Glaeser, in respondent's favor for his costs and the attachment discharged. Later demand was made upon appellant as surety on the attachment bond and this action was commenced in the district court in Ada county, which resulted in a judgment against appellant for respondent's traveling expenses, court costs and attorney fees, the proximate damages incurred by the attachment proceedings. From this judgment appellant appeals.

Appellant's first contention is that the service of summons was void and that the defendant in the attachment suit (respondent here) was under no obligation to appear and defend the action.

No grounds existed for...