State ex rel. v. Weinberg and Am. Sur. Co., 19905.

• Decision Date: 07 April 1941
• Docket Number: No. 19905.,19905.
• Citation: 151 S.W.2d 134
• 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.
• Court: Missouri Court of Appeals

151 S.W.2d 134 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. No. 19905. Kansas City Court of Appeals, Missouri. 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.

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

151 S.W.2d 135

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...