Reachi v. National Auto. Cas. Ins. Co. of Los Angeles
| Citation | 236 P.2d 151,37 Cal.2d 808 |
| Court | United States State Supreme Court (California) |
| Decision Date | 19 October 1951 |
| Parties | REACHI v. NATIONAL AUTO. & CAS. INS. CO. OF LOS ANGELES. L. A. 21766. |
Guy E. Ward and Kenneth D. Holland, Beverly Hills, for appellant.
Harry A. Franklin, Los Angeles, for respondent.
Manuel Reachi is claiming damages assertedly sustained by him in clearing title to real property from the lien of an attachment which was wrongfully obtained. His appeal is from a judgment which followed an order sustaining the surety's demurrer to the complaint without leave to amend.
At the time the attachment was issued, Reachi alleges, he was a resident of Mexico City and the owner of certain land in Los Angeles. Damages assertedly caused by the negligence of Reachi in making an excavation upon his land were claimed by the adjoining owner who filed a bond executed by the respondent surety, and obtained a writ of attachment. The writ was levied on Reachi's property pursuant to section 537, subsection 3, of the Code of Civil Procedure.
Reachi did not move to set aside the levy or recall the writ but, following a trial of the action on the merits, judgment was rendered in his favor. That judgment is now final. As he states the situation in his complaint, 'all of the proceedings, pleadings and documents with respect to the levy of said attachment were valid and regular on their face and for that reason * * * (he) * * * made no motion nor brought any proceeding to discharge or dissolve said attachment, as said motion or proceeding would have been unsuccessful and an idle and futile act, and the only manner by which said attachment could be dissolved or discharged was to defend and win the above mentioned action on its merits'.
To defend the action, Reachi alleges, it was necessary for him to travel from Mexico City to Los Angeles to testify at the trial at an expense of $1,500, and to incur liability for attorney's fees of $2,500. According to the complaint, the issues to be tried required him to employ, at $505, a licensed surveyor to made an examination of the excavation on his property and the alleged damage caused by it, prepare maps, exhibits, blue prints and other documents, and testify at the trial. Reachi alleges that, after demand, payment of these sums has been refused by both the plaintiff in the principal action and by the surety.
The demurrer of the surety was sustained without leave to amend and judgment entered accordingly. As grounds for reversal of the judgment, Reachi contends that because the gravamen of the present action is a wrongful attachment, he is entitled to the expenses necessarily incurred by him in clearing his title of the attachment. He admits that, ordinarily, attorney's fees incurred in defense of the principal suit, as distinguished from those paid for procuring a dissolution of an attachment, are not recoverable as an item of damages. However, he contends that where the attachment is regular on its face and the wrongfulness of the levy can only be shown in a trial upon the merits, attorney's fees are allowable.
The surety contends that the decisions in this state limit the recovery of attorney's fees to those paid in proceedings to vacate the attachment, and do not permit the recovery of amounts paid for the defense of the principal suit. Furthermore, argues the surety, the complaint does not show that attorney's fees were paid. The traveling expenses are challenged as unnecessary. Reachi's testimony, it is said, could have been taken by deposition; a party to a suit is not entitled to witness fees or mileage for attending a trial, and 'his presence must be referred to his natural interest as a party to the litigation'. The claim for expenses incurred in the employment of the surveyor is attacked upon the ground that fees paid to an expert witness may be taxed as costs only when he has been appointed by and under the direction of the court, and no such order is pleaded as having been made.
In accordance with the provisions of section 539 of the Code of Civil Procedure, the undertaking guarantees payment of '* * * all costs that may be awarded to the said defendants, or any of them, and all damages, which they, or any of them may sustain by reason of the said attachment. * * *' The parties agree that the measure of damages in an action on an attachment bond is the actual expense and loss necessarily and proximately caused by the levy. But the surety, in effect, argues that attorney's fees incurred in the defense of the principal suit can never be regarded as having been proximately caused by the attachment levy. There is no support for this position either in logic or legal principles.
Although there are several decisions by the courts of this state denying the recovery of counsel fees paid in defense of the principal suit, Miramonte & Louedestel Co. v. National Surety Co., 91 Cal.App. 64, 266 P. 576; Soule v. United States Fidelity & Guaranty Co., 82 Cal.App. 572, 255 P. 886, and see cases cited and discussed therein, material factual differences distinguish them from the situation shown by Reachi's complaint. In none of those cases did the plaintiff allege or prove that the writ of attachment was regular on its face and, for that reason, not subject to a motion to vacate or dissolve it.
As stated in Thropp v. Erb, 255 N.Y. 75, 174 N.E. 67, 68, 71 A.L.R. 1455, 'If a defendant, instead of making such a motion, chooses to appear generally in an action and to defend it on the merits, his appearance may be for the dual purpose of getting rid of the attachment and of disposing of the issues; but he can hardly assert that his defense on the merits was for the purpose of disposing of the attachment and that expenses incurred in such defense were 'damages sustained by...
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