Rodman v. Ladwig
| Decision Date | 15 June 1937 |
| Docket Number | 43875. |
| Citation | 274 N.W. 1,223 Iowa 884 |
| Parties | RODMAN v. LADWIG. |
| Court | Iowa Supreme Court |
Appeal from District Court, Floyd County; M. F. Edwards, Judge.
Plaintiff commenced an action against the defendant to recover money due upon a written instrument, and sued out a writ of attachment. Defendant filed a general denial and counterclaim on the bond. Trial to the jury, which returned a verdict for the defendant. Defendant filed a motion that the court allow fix, and tax as part of the costs, as against the plaintiff a reasonable fee for defendant's attorneys. The court overruled the motion, and defendant has appealed. Opinion states the facts.
Reversed.
E. C Moody, of Nora Springs, and R. W. Zastrow, of Charles City for appellant.
Jens Grothe, of Charles City, for appellee.
Jennie L. Rodman commenced an action against Maude Cannon Ladwig to collect the sum of $400, alleged to have been due on a written instrument. She prayed for and secured a writ of attachment, and levied same upon a store known as " Maude's Place" in Charles City. Defendant filed a general denial and also a counterclaim on the bond. There was a trial to the jury, which returned a verdict in favor of the defendant. Thereafter attorneys representing defendant filed an application, asking the court to assess against the plaintiff, as part of the costs, a reasonable attorneys' fee. This the court refused to do, and the defendant has appealed.
The sole question before us is whether or not attorneys' fees for defendant's attorneys should be taxed as part of the costs.
Section 12090 of the 1935 Code of Iowa is as follows:
The interpretation of this statute has been before this court on several occasions. In the recent case of Stults v. Northwestern Inv. Co., 198 Iowa, 1056, at pages 1058, 1059, 200 N.W. 696, 697, this court said:
" The right to recover, in an action on the bond, attorney's fees incurred in securing the release of attached property is well settled. In Peters v. Snavely-Ashton, 144 Iowa, 147, 120 N.W. 1048, 122 N.W. 836, the question was fully considered in the light of the statutes and the earlier decisions of this court in a supplemental opinion filed following a petition for a rehearing, and appearing at page 161 of 144 Iowa, 122 N.W. 836.See, also, Ames v. Chirurg, 152 Iowa, 278, 132 N.W. 427, 38 L.R.A.(N.S.) 120.At the time of these decisions it was held, however, that an attorney fee for defending the main action, to which the attachment was merely auxiliary, could not be allowed as damages on the bond, notwithstanding an earlier decision (Whitney & Co. v. Brownewell, 71 Iowa, [251] 252, 32 N.W. 285) to the effect that an allowance might be made for attorney's fees in defending the entire case, where the whole defense made tended to show the wrongfulness of the attachment. In the Whitney Case there was a failure to prove any indebtedness on the part of the defendants in attachment. The latter recovered only nominal damages on their counterclaim, and an allowance of attorney's fees appears to have been made by the court, in disregard of the distinction, pointed out in the Peters and Ames Cases, between attorney's fee incurred in securing the release of the attachment, which are recoverable as damages in an action on the bond, and those to be fixed by the court as a part of the costs in a successful prosecution of an action on the bond.
In Crom v. Henderson, supra [188 Iowa, 227, 175 N.W. 983] the question of the right to recover attorney's fees incurred in...
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