Randall v. United States Fidelity & Guaranty Company

• Court: Idaho Supreme Court
• Writing for the Court: MORGAN, J.
• Citation: Randall v. United States Fidelity & Guaranty Company, 23 P.2d 319, 53 Idaho 310 (Idaho 1933)
• Decision Date: 22 June 1933
• Docket Number: 5988
• Parties: JOHN RANDALL, Respondent, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, Appellant

23 P.2d 319

53 Idaho 310

JOHN RANDALL, Respondent, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, Appellant

No. 5988

Supreme Court of Idaho

June 22, 1933

ATTACHMENT-LIABILITY ON BOND-ATTORNEY FEES-STIPULATIONS.

1. In action on attachment bond for costs and attorney's fees stipulation that defendant prior to trial tendered costs sued for held immaterial on issue of liability for attorney's fees, in absence of deposit in court, reference to tender in answer, or offer by defendant to allow judgment to be given against it for amount admitted due (I. C. A., secs. 12-102, 12-110, 12-301).

2. Defendant successfully defending attachment suit held not entitled to recover attorney's fees on attachment bond in absence of showing expense of employing counsel was incurred because of attachment, or that it would not have been incurred had no attachment been levied (I. C. A., sec 12-102).

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

Action on undertaking on attachment. Judgment for plaintiff. Modified and affirmed.

Judgment affirmed. Costs on appeal awarded to appellant.

J. H. Felton, for Appellant.

Where an action is filed, service of summons is made within the jurisdiction, and after an appearance by the defendant an attachment is issued in said action, incident to the suit, attorney's fees and costs in the principal action are not recoverable on the attachment bond. (Moseley v. Fidelity & Deposit Co., 33 Idaho 37, 189 P. 862, 25 A. L. R. 564; Java Cocoanut Oil Co. v. Fidelity & Guaranty Co., 300 F. 302.)

Thomas A. Feeney, for Respondent.

Where an attachment is regular on its face and can only be discharged by defeating the principal actions by a trial upon its merits, the attorney fees paid out for defending the principal action are recoverable in a suit upon the attachment bond. (Moseley v. Fidelity etc. Co. of Maryland, 33 Idaho 37, 189 P. 862, 25 A. L. R. 564; Union Mill Co. v. Prenzler, 100 Iowa 540, 69 N.W. 876; Stults v. Northwestern Investment Co., 198 Iowa 1056, 200 N.W. 696.)

MORGAN, J. Budge, C. J., and Givens, Holden and Wernette, JJ., concur.

OPINION

MORGAN, J.

July 27, 1931, Fendel Whaley commenced action against John Randall and caused summons to be issued therein and personal service thereof to be made on the defendant in Idaho. Prior to the commencement of the action Randall, anticipating it would be commenced, arranged with an attorney to represent him and, August 15, 1931, the attorney appeared in the case for his client. August 27, 1931, Whaley caused a writ of attachment to be issued and levied on real property of Randall. To procure the issuance of the writ, an undertaking was given, executed by appellant in this case as surety. August 29, 1931, the attorney for Randall filed a motion and notice of motion to dissolve the attachment and to increase the bond on attachment. These motions were abandoned and the notices thereof vacated by the attorney. The trial of the case resulted in judgment in favor of Randall and against Whaley for costs in the sum of $ 21.

This action was commenced by Randall against the surety on the attachment bond, appellant herein, to recover the $ 21 costs awarded in his favor, and $ 179 which he expended in the employment of the attorney. The trial was to the court, without a jury, and resulted in judgment for plaintiff, Randall, for $ 200 and costs. This appeal is from that judgment.

It was stipulated that, prior to the trial, appellant tendered to respondent $ 21 the amount of the costs sued for. However, no reference to the tender appears in the answer, nor was a deposit in court made as contemplated by Idaho Code Annotated, sec. 12-110. No offer was made by appellant to allow judgment to be given against it for the amount it admitted itself to be indebted to respondent, as provided for in sec. 12-301, so that the stipulation with respect to a tender can have no bearing on the question here under consideration, other than as an admission on appellant's part of its liability for the $ 21 costs awarded to respondent in the attachment case.

The question presented is as to respondent's right to recover money necessarily expended by him in the employment of an attorney to defend against the action in which his property was attached.

The contract to indemnify, expressed in the undertaking, is:

"Now, therefore, the undersigned surety company, in consideration of the premises, and of the issuing of said attachment, does undertake, in the sum of Two Hundred Dollars, gold coin, and promise to the effect that if said defendant recover judgment, or if said attachment be wrongfully issued, in said action, the said plaintiff will pay all costs that may be awarded to the said defendant, and all damages he may sustain by reason of said attachment not exceeding Two Hundred Dollars."

Respondent relies on Moseley v. Fidelity etc. Co. of Maryland, 33 Idaho 37, 189 P. 862, 865, 25 A. L. R. 564. The facts of that case distinguish it from this. Recovery against the surety on the undertaking on attachment in that case including attorney's fees...