State ex rel. Johnson v. Weinberg

• Citation: 151 S.W.2d 134,235 Mo.App. 1274
• Parties: STATE OF MISSOURI, EX REL. WILLIE CARSON JOHNSON AND W. G. JOHNSON, DEFENDANTS IN ERROR, v. B. F. WEINBERG AND AMERICAN SURETY COMPANY OF NEW YORK, PLAINTIFFS IN ERROR
• Decision Date: 07 April 1941
• Court: Court of Appeals of Kansas

151 S.W.2d 134

235 Mo.App. 1274

STATE OF MISSOURI, EX REL. WILLIE CARSON JOHNSON AND W. G. JOHNSON, DEFENDANTS IN ERROR, v. B. F. WEINBERG AND AMERICAN SURETY COMPANY OF NEW YORK, PLAINTIFFS IN ERROR

Court of Appeals of Missouri, Kansas City

April 7, 1941

Error to Circuit Court of Vernon County.--Hon. Thomas W. Martin Judge.

AFFIRMED (conditionally).

Henderson Deacy, Henderson & Swofford and Joseph Koralchik for plaintiffs in error.

(1) Where a defendant in an attachment suit sues upon the bond he is only entitled to recover damages which are the proximate result of the attachment, and where the attachment is dissolved or where the defendant gives bond before the trial of the case on the merits and his property is released from the attachment, he is not entitled to recover expenses incurred or paid out in connection with the defense of the case on the merits. State to the use of Russell v. Fargo et al., 151 Mo. 280; State ex rel. Nova Conway v Binney, 127 Mo.App. 710; State ex rel. v. Conran, 212 S.W. 869; State ex rel. v. Yount, 286 Mo.App. 258. (2) In a suit on an attachment bond, evidence relating to expenses incurred by the defendant therein subsequent to the release of his property from the attachment and in defending the case on the merits, is incompetent, irrelevant and immaterial. State to the use of Russell v. Fargo et al., 151 Mo. 280; State ex rel. Nova Conway v. Binney, 127 Mo.App. 710; State ex rel. v. Conran, 212 S.W. 869; State ex rel. v. Yount, 186 Mo.App. 258. (3) Where plaintiff in a suit on an attachment bond claims special damages by reason of attorney's fees paid out or incurred to non-resident lawyers of Missouri for services rendered outside the State of Missouri, the burden is upon the plaintiff to prove the reasonableness of such charges. State ex rel. v. Seavey & Flarsheim, 137 Mo.App. 1.

C. H. Ewald and Ewing, Ewing & Ewing for defendants in error.

(1) The giving of the redelivery or forthcoming bond to the sheriff of Jackson County did not dissolve the attachment nor discharge the lien thereof on the rents owing from the Milner Hotel Company to the Johnsons. The attachment remained in full force up until the trial of the case on the issues joined and the rendering of the verdict on February 26, 1938. Labeaume v. Sweeney, 21 Mo. 166; Evans v. King, 7 Mo. 411; Coal Co. v. Lead & Zinc Co., 157 Mo.App. 315; Hudson v. Lamar, 74 Mo.App. 238; Coon v. Watkins, 62 Mo.App. 502; Fleming v. Clark, 22 Mo.App. 218; Haber v. Klauberg, 3 Mo.App. 342. (2) The attachment in this case was not dissolved until after the verdict and judgment in the case. The only means defendants had to defeat the attachment was to show that there was no merit in the case itself and that defendants were not indebted to the plaintiffs. Therefore, defendants are entitled to recover from plaintiffs on the attachment bond whatever necessary expenses they incurred in the defense of this cause up to the time, at least, the verdict and judgment were rendered. Such damages include their expenses in taking depositions, their traveling expenses and hotel bills from their home in Texas to Kansas City, Missouri, to attend the trial of the case, the premium which they were compelled to pay on the forthcoming bond and their attorneys' fees in taking depositions and in the defense of the case, interest on the money held in the hands of the garnishee and expenses of attorneys. State to the Use v. Thomas, 19 Mo. 619; State to the Use v. Beldsmeir, 46 Mo. 266; Kansas City Hotel Co. v. Sauer, 65 Mo. 279, 289; State to the Use v. Fargo, 151 Mo. 280; State to the Use v. McHale, 16 Mo.App. 478; State ex rel. v. Shobe, 23 Mo.App. 474; State v. Goodhue, 74 Mo.App. 162; State ex rel. v. Seavy, 137 Mo.App. 1, 8; State ex rel. v. Yount, 186 Mo.App. 258, 260. (3) The allowance of attorneys' fees for taking of depositions, the allowance of notary's fees for taking depositions and the allowance of traveling expenses and loss of time were all items of damage recoverable upon the bond and the proof of such items is amply sustained by the evidence. The court is entitled to take judicial knowledge in certain instances, as in this case, of the reasonable value of attorneys' fees. See authorities under Points 1 and 2 and: Dempsey v. Schawacker, 140 Mo. 689-90.

OPINION

BLAND, J.

--This is a suit on a bond given in an attachment suit. The case was tried before the court, without the aid of a jury, resulting in a judgment in favor of plaintiffs below in the sum of $ 997.15, and for defendant, Weinberg, in the sum of $ 50 upon a counterclaim filed by him. The case has been brought here, by the defendants in the court below, by a writ of error.

The facts show that, on June 26, 1937, B. F. Weinberg, the principal in the bond sued upon, instituted a suit in the Circuit Court of Jackson County, Missouri, against the relators herein, for the recovery of a commission for the alleged securing of a tenant by him for the defendants' hotel. In said suit, he prayed judgment in the sum of $ 1467. Appended to the original petition was an affidavit for attachment, wherein it was stated that defendants therein, relators here, were non-residents of the State of Missouri. Upon this petition a writ of attachment was issued and, on June 26, 1937, the Milner Hotels, Inc., was summoned as garnishee.

The writ was returnable September 13, 1937. On August 13, 1937, the defendants in that suit, relators herein, entered their appearance, and filed an answer. They also filed a motion to dissolve the attachment because no bond had been filed.

On August 18, 1937, the motion to dissolve the attachment was sustained conditionally, the condition being that if plaintiff should file an attachment bond within five days the attachment should remain in force.

On August 19, 1937, Weinberg filed an attachment bond, which bond is the one sued upon in the instant case. This bond was in the sum of $ 3000 and was signed by Weinberg, as principal, and the American Surety Company of New York, as surety.

Thereafter, the Johnsons, who were defendants in the attachment suit, filed in said suit, a bond in the sum of $ 3000 designated as a "Forthcoming Bond." This bond was dated September 9, 1937, and recited that the principal and the surety therein acknowledged themselves to be indebted to the Sheriff of Jackson County, his successors or their assigns, in the sum of $ 3000; that the sheriff "has levied upon and seized as the property of the above named defendants, the personal property described in the schedule hereto attached, marked Exhibit 'A' and made a part of this bond, said property at the time of said levy and seizure being in the hands of Milner Hotels, Incorporated, garnishee and said Willie Carson Johnson and W. G. Johnson desiring to retain or regain the possession thereof.

"Now, therefore, if the said Willie Carson Johnson and W. G. Johnson shall have said certain personal property described in the schedule hereto attached, marked Exhibit 'A' and made a part of this bond, forthcoming when and where the Court shall direct, and shall abide the judgment of this Court, then this bond shall be void, otherwise to remain in full force and effect."

The bond was filed with the sheriff. Thereafter, the funds of the defendants, garnished in the hands of the Milner Hotels, Incorporated, were released by the sheriff on October 1, 1937. The return of the sheriff shows that the garnishment was released on September 9, 1937. The answer of the garnishee states that on September 9, 1937, it was advised by the sheriff that the attachment had been released from the garnishment and it would not be required to answer the summons and garnishment in any way whatsoever, and that it, thereafter, paid over to defendants all funds due them at the time of the release and subsequent thereto. This answer was filed about February 17, 1938. However, it was stipulated between the parties, at the trial of the present suit, that the funds were not actually released by the sheriff under the bond until October 1, 1937.

At the time of the garnishment the garnishee did not have any money, property or effects on hand of the defendants and was not indebted to the defendants in any manner whatsoever. However, the garnishee withheld payments of monthly rents due from it to the Johnsons at the rate of $ 300 per month from June 29, 1937 to September 9, 1937, or a total of $ 975. No other property or money was attached under the writ in that case.

The Johnsons employed as their attorney, the Honorable Lee B. Ewing, of the Vernon County Bar, who represented them in the case from the outset. He was assisted by a Kansas City attorney. Depositions were taken in Knoxville, Tennessee, and Detroit, Michigan.

The case was tried on February 25, 1937, and a verdict was rendered for the Johnsons upon which judgment for them was entered. Weinberg appealed to this court. The appeal was dismissed on April 18, 1938, for failure to comply with the rules of court. The present suit was instituted on August 25, 1939.

The items of damage alleged to have occurred to the Johnsons, as a result of the giving of the attachment bond by Weinberg, were the fees and expenses of the two attorneys mentioned, totalling $ 514.09, attorneys and notary fees, in the taking of depositions, in the sum of $ 135.85, premium paid for the forthcoming or delivery bond $ 60, traveling expenses of the Johnsons to and from Kansas City from their home in Welfare, Texas, $ 160, loss of time to the Johnsons, in attending the trial $ 80, and interest on the money attached in the hands of the Milner Hotels, Incorporated $ 13.95. The total amount prayed for was $ 1039.89.

The judgment includes interest accruing after the date of the former judgment on the amount that ...