National Surety Co. v. O'Connell

• Decision Date: 17 December 1918
• Docket Number: 1 Div. 256
• Citation: 81 So. 146,16 Ala.App. 654
• Parties: NATIONAL SURETY CO. v. O'CONNELL. [*]
• Court: Alabama Court of Appeals

81 So. 146

16 Ala.App. 654

NATIONAL SURETY CO. v. O'CONNELL. ^[*]

1 Div. 256

Court of Appeals of Alabama

December 17, 1918

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by John C. O'Connell against the National Surety Company on a bond given by on Willis as principal, and said company as surety. From the judgment rendered, the surety company appeals. Affirmed.

Armbrecht, Johnston & McMillan and J.O Middleton, all of Mobile, for appellant.

Gaillard Mahorner & Arnold, of Mobile, for appellee.

BROWN P.J.

The appeal in this case was taken on the 22d day of March, 1917 and was returnable on the 15th day of April, following. The first call of the division to which the case belongs, after the suing out of the appeal, was during the week embracing April 3, 1917, and on this day the case was docketed on certificate and continued. The transcript was filed on the 16th day of August, and the case was argued and submitted a the next call of the division, November 15, 1917. At the submission, counsel for appellant made a showing, which is in no way controverted, that the delay in filing the transcript resulted from the efforts of the appellant to perfect or establish a bill of exceptions, and from this showing it appears that the withholding of the transcript from the files was not for the purpose of delaying the hearing of the appeal, but for the purpose of perfecting the appeal. The motion to dismiss the appeal is therefore overruled. Codd v. Reynolds, 186 Ala. 207, 65 So. 41.

The appeal here is on the record, the appellant having failed in its efforts to perfect or have a bill of exceptions established, and the only questions presented for review arise from the rulings of the court on demurrers to the complaint and the motion to strike certain averments thereof as to the elements of damages claimed.

The action is on a bond given by one Willis as principal and the appellant here as surety, in an equity proceeding in the District Court of the United States for the Southern District of Alabama, and payable to the plaintiff, as a prerequisite to obtaining a temporary restraining order restraining the appellee, who was the defendant in the equity proceeding in the federal court, from making certain alleged libelous and defamatory publications in a newspaper which he owned and was then publishing. The bond is conditioned "to pay all costs and expenses and damages which the said plaintiff might incur in the dissolving of the said restraining order, should the same be held to be improvidently issued."

We have no hesitancy in reaching the conclusion that the dismissal of the bill for want of equity by the federal court on motion of the defendant in that suit operated a dissolution of the restraining order and was in effect an adjudication that such restraining order was improvidently issued. National Surety Co. v. Citizens' Light, Heat & Power Co. et al., 78 So. 834, and authorities there cited.

The complaint substantially follows the form laid down in the Code for suits on bonds with condition, and is sufficient to authorize the award of general damages, not required to be specifically claimed, resulting from the breach of the bond sued on. Code 1907, § 5382, form 7; Dothard v. Sheid, 69 Ala. 135; Nat. Surety Co. v. Citizens' Lt., Ht. & Power Co., supra. If the restraining order was functus officio by lapse of time, and was not in force when the order dismissing the bill was made, it was not dissolved by that order, and was defensive matter admissible under the general issue.

This disposes of the several grounds of demurrer other than those relating to the elements of damages that are recoverable. As to such matters, it is the settled rule in this state that demurrer is not the proper remedy to expunge from a complaint a claim for nonrecoverable damages. W.U.T. Co. v. Garthright, 151 Ala. 413, 44 So. 212; Nat. Surety Co. v. Citizens' Lt., Ht. & Power Co., supra.

In Oelrichs v. Spain, 15 Wall. 211, 21 L.Ed. 43, the Supreme Court of the United States held that such expenses as fees paid to counsel incurred by a litigant in defending against and seeking the dissolution of an injunction granted by a federal court were not recoverable "damages" in a suit on injunction bonds conditioned to "prosecute the writ of injunction with effect and pay all damages and costs which the obligees or any of them shall sustain by the granting of this injunction," or to prosecute the writ of injunction "with effect and satisfy and pay as well the costs, damages, and charges which shall accrue in said circuit court *** as all costs, damages, and charges which shall be occasioned by said writ of injunction, unless the *** court shall decree to the contrary." This ruling has been reaffirmed in Tullock v. Mulvane, 184 U.S. 497, 22 Sup.Ct. 372, 46 L.Ed. 657, and followed by our Supreme Court in National Surety Co. v. Fletcher, 186 Ala. 605, 65 So. 150, Ann.Cas.1916D, 872.

Nonliability for attorney's fees on a bond so conditioned is rested on two grounds: (1) That, inasmuch as such fees are not recoverable as a part of the damages in ordinary actions, it is illogical to allow such fees as a part of the "damages" on a bond so conditioned; and (2) there being no fixed standard "by which the honorarium can be measured," and inasmuch as some counsel demand much more than others and some clients are willing to pay much more than others, the litigation to recover the fees on the bond might become more animated than the original litigation, resulting in an embarrassment to the court that might perchance be called upon to reduce the fees allowed by a jury or the master on reference. The court says:

"In actions of trespass where there are no circumstances of aggravation, only compensatory damages can be recovered and they do not include the fees of counsel. The plaintiff is no more entitled to them, if he succeed, than is the defendant if the plaintiff be defeated. Why should a distinction be made between them? In certain actions ex delicto vindictive damages may be given by the jury. In regard to that class of cases, this court has said: 'It is true that damages assessed by way of example may indirectly compensate the plaintiff for money expended in counsel fees, but the amount of these fees cannot be taken as the measure of punishment or a necessary element in its infliction.' Day v. Woodworth, 13 How. 370, 371 .

"The point here in question has

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