Singer v. Fidelity & Deposit Co. of Md.

• Decision Date: 15 January 1903
• Citation: 54 A. 63,96 Md. 221
• Parties: SINGER et al. v. FIDELITY & DEPOSIT CO. OF MARYLAND.
• Court: Maryland Court of Appeals

54 A. 63

96 Md. 221

SINGER et al. v. FIDELITY & DEPOSIT CO. OF MARYLAND.

Court of Appeals of Maryland

January 15, 1903

Appeal from superior court of Baltimore city; Danl. Giraud Wright Judge.

Action by Frank O. Singer and another against the Fidelity & Deposit Company of Maryland. From an order granting a motion to quash a writ of fi. fa., plaintiffs appeal. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE, SCHMUCKER, and JONES, JJ.

S.S Field and H.C. Gaither, for appellants.

Alfred S. Niles and Rich. Bernard & Sons, for appellee.

SCHMUCKER J.

The controversy of which this appeal is an incident has been before us on three previous occasions. It originated in a replevin issued out of the superior court of Baltimore city by the Standard Horseshoe Company against Bernard J O'Brien and Frank O. Singer, Jr., to whom he had made a deed of trust for the benefit of his creditors. The first trial of the replevin suit resulted in a judgment for the defendants, which was reversed, on appeal, by this court, and the case remanded for a new trial, in The Standard Horseshoe Co. v. O'Brien et al., 88 Md. 335, 41 A. 898. The second trial also resulted in a judgment for the defendants, which was affirmed by this court, in 91 Md. 751, 46 A. 346. O'Brien and Singer then brought suit, to the use of Singer as trustee, in the same court, against the present appellee, the Fidelity & Deposit Company, as surety on the replevin bond, and recovered a judgment, which we reversed, without awarding a new trial, in 94 Md. 124, 50 A. 518. In reversing this judgment, we directed the costs in the superior court to be paid by the Fidelity & Deposit Company. When the suit on the replevin bond was instituted in the superior court against that company, it disputed, under oath, the entire claim of the plaintiffs. When it lost the case, the court, after the entry of the judgment passed an order allowing the plaintiffs a counsel fee of $100, in exercise of the power conferred on it by section 315 of chapter 123 of the Acts of 1898, which reads as follows: "If the defendant shall dispute the whole or any part of the plaintiff's demand, in any action brought under the provisions of the three foregoing sections, and upon trial of the case the plaintiff shall recover a judgment for any portion of the demand so disputed, then the plaintiff shall be allowed, in addition to the costs of the suit, reasonable counsel fees to be fixed by the court, said fees to be not less than twenty-five dollars, nor more than one hundred dollars." After the reversal by us of the judgment on the replevin bond, the Fidelity & Deposit Company paid all of the costs in the superior court of that suit, but declined to pay the $100 counsel fee allowed by that court to the plaintiffs. The plaintiffs, who are the present appellants, thereupon directed the clerk to issue a fi. fa. for the counsel fee. The clerk issued a fi. fa. for the entire costs, including the counsel fee; indorsing on the writ a credit for the costs already paid by the appellee, leaving a balance due under the writ of $100. The defendant filed in the superior court a motion to quash this writ, which motion the court granted; asserting in its order that the counsel fee was not part of the costs, but was an incident to the judgment, and became nullified by the reversal of the latter upon the appeal. From that order the present appeal was taken.

The appellants contend that the counsel fee in question must be treated and considered as...