State ex rel. Hayden v. McHale

• Decision Date: 24 February 1885
• Citation: 16 Mo.App. 478
• Parties: STATE OF MISSOURI TO USE OF C. S. HAYDEN ET AL., Respondent, v. PATRICK MCHALE ET AL., Appellants.
• Court: Missouri Court of Appeals

16 Mo.App. 478

STATE OF MISSOURI TO USE OF C. S. HAYDEN ET AL., Respondent,

v.PATRICK MCHALE ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 24, 1885.

1. ATTACHMENT--ACTION ON BOND--PRACTICE--FORM OF VERDICT.

In an action on an attachment bond, where several items of damage are alleged, the jury in their verdict properly specify the damages under each allegation.

2. ____

A refusal to receive such a verdict is not ground for a reversal, where the jury immediately return a verdict for the aggregate amount of their first findings.

3. ____ATTACHMENT BONDS ASSIGNABLE--SET-OFF.

The assignee of an attachment bond may sue thereon in his own name, but the defendant may have the benefit of any off-set he would have had against the assignor.

4. ____PLEADINGS--DAMAGES ON BOND--ATTORNEY'S FEES--EXPENSES.

In an action on an attachment bond allegations that the plaintiff “was required to pay out large sums of money in the defence of the suit, and suffered a loss of time in attending thereto, and was deprived of the use of the money attached, and was injured in his business,” etc., are sufficient to warrant a recovery for attorney's fees and extra expenditures in the suit.

5. ____PRACTICE--MOTIONS.

Where the defendant claims that allegations of special damage in such an action, are not sufficiently explicit to advise him of the elements of damage, he should move to have the petition made more definite and certain.

6. ____PLEA IN ABATEMENT--ATTORNEY'S FEES.

In such an action, where the attachment was dissolved on the hearing of the plea in abatement, the plaintiff can recover only for such counsel fees as are incurred in sustaining the plea in abatement.

7. ____

In such an action, where the attachment is not dissolved until final judgment on the merits, the judgment on the plea in abatement being for the plaintiff, a reasonable fee for attorney's services on the trial of the merits may be recovered.

8. ____EXPENSES.

Cash paid out for the examination of books and for a transcript of the record, if the expense therefor was necessarily incurred in the preparation of the defence, is recoverable in such an action.

9. ____

A stenographer's services are not, as matter of law, a necessary expense of a trial, and in such an action there can be no recovery for such services unless they are shown by the evidence to have been necessary.

10. ____INTEREST.

In such an action, interest on the money attached, by garnishment, may be recovered by way of damages.

11. ____EXCESSIVE VERDICT--REMITTITUR--APPELLATE COURTS.

In such an action, the appellate court may, where the damage is excessive, reverse the judgment for that cause, unless the respondent will, by stipulation, remit the amount of the excess.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed nisi.

W. H. CLOPTON, for the appellants: An attachment bond is not assignable.--Rev. Stats., sects. 408, 409. The only person who can maintain an action on the bond is the defendant in the suit in which the bond was given.-- Davis v. The Commonwealth, 13 Gratt. 138; Rospelin v. Browndon, 7 La. 231; Edwards v. Turner, 6 Rob. (La.) 382. The declaration fails to aver the non-payment of the damages sustained by the principal in the bond, and is therefore bad.-- Michael v. Thomas, 27 Ind. 501; Urig v. Snex, 32 Ind. 493; Ryder v. Thomas, 32 Iowa, 56; Horner v. H., 37 Iowa, 378; Prindy v. H., 1 Mont. 367; Drake on Attach., sect. 168. The petition does not state a cause of action as to attorney's fees.-- The State v. Blakeman, 51 Mo. 320. Attorney's fees for the trial on the merits can not be allowed.-- Roe v. Thompson, 19 Mo. 613; Clifford v. Beldsmeier, 56 Mo. 227; Kelly v. Beauchamp, 59 Mo. 178; Cantwell v. Stark, 75 Mo. 569; Whyte v. Wiley, 17 Ala. 167. There can be no recovery for attorney's fees unless the fees have been paid or contracted to be paid, and are proved to be reasonable.-- Schultz v. Morrison, 3 Metc. (Ky.) 98; Johnson v. Farmer's Bank, 4 Bush, 282; Doe v. Perkins, 8 B. Mon. 198; Lucas Bank v. King, 73 Mo. 590.

W. B. THOMPSON, for the respondent: The judgment in this case is for the damages that the plaintiff's assignor sustained by reason of the attachment, including any damages directly occasioned by any process or proceeding in the suit.-- The State to use v. Thomas, 19 Mo. 613; The State to use v. Beldsmeier, 56 Mo. 226; The State ex rel. v. Stark, 75 Mo. 556.

ROMBAUER, J., delivered the opinion of the court.

What kind of damages an obligee in an attachment bond, given in pursuance of the statute, is entitled to recover from the obligors in a suit upon the bond for breaches thereof, is a question of law. It follows from this, that where there is no controversy whatever as to the amount of the various items which are claimed as damages in such suit, the judgment stands upon unquestioned facts and is a mere conclusion of law.

In this cause, the suit being one upon an attachment bond, the plaintiffs, who are assignees of the bond, set out in their petition the giving of the bond, and its terms, which are statutory. They also set out the garnishment of several debtors of the defendant in the attachment, and the seizure of debts in their hands, and assign as a breach of the bond a final judgment in favor of defendant in the attachment upon the merits. Their petition made the following averment as to the damages sought to be recovered in this suit:--

“Plaintiffs further state that by reason of the attachment and garnishments and suit aforesaid, and in consequence of breaches of said bond, the said Gustus Oertel (the obligee in the bond) was required to pay out and expend large sums of money in the defence of said suit, and suffered a loss of time, in attending thereto, and was deprived of the use of the property so attached, and was injured in his business by reason of the levy and seizure of said sums of money under said attachment and sustained other damages and injuries, etc., amounting to $4,100.00.”

There was a verdict for plaintiffs for $926.00 consisting, according to the statements of the jury in a verdict rejected by the court but preserved in the record, of the following items: attorney's fees, $368; Oertel's expense, $162; interest claimed, $396. Total, $926.00.

The court upon rejecting this verdict instructed the jury in writing to find a general verdict for a gross sum and they thereupon returned a verdict for plaintiffs for $926.00, and the court rendered judgment for the penalty of the bond $4,100, with award of execution for the amount found by the jury and costs.

For the reason first herein above stated we need not examine defendant's numerous objections to the evidence nor the instructions of the court given and refused. The judgment rendered must stand or fall according to the law applicable to the unquestioned testimony and the detailed finding of the jury. The defendants requested that the first and detailed verdict, brought in by the jury, be received and filed, and excepted to the action of the court in refusing to do so. But while the action of the court in refusing to receive that verdict was manifest error, we can not see how the defendants were prejudiced by it, since the second verdict is for the same amount, and the first verdict is preserved in the record so as to enable us to examine the findings of the jury in detail.

The substantial objections now made by defendants in this court are:--

1. That an attachment bond is not assignable and the assignees can not maintain an action thereon in their own name.

2. That the plaintiff's petition does not contain a sufficient averment of special damages so as to entitle them to recover counsel fees, extra outlays, and interest.

3. That the obligee in the bond can not recover counsel fees for trying the merits of the suit after judgment on the plea in abatement, nor...