State v. Barrs
| Decision Date | 21 February 1924 |
| Citation | 87 Fla. 168,99 So. 668 |
| Parties | STATE ex rel. ROYAL INS. CO., Limited v. BARRS, Judge et al. |
| Court | Florida Supreme Court |
Original proceedings by the State, on the relation of the Royal Insurance Company, Limited, against Burton Barrs, Judge of the Civil Court of Record in and for Duval County, and another. On motion for a writ of prohibition.
Writ ordered.
Syllabus by the Court
Statutory attorneys' fees not regarded as 'costs' in case. There is no general or controlling provision or principle of law to the effect that attorney fees that may by statute be recovered by the winning party against the losing party in a suit or acton are, or should be regarded as, costs in the case. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Costs.]
Amount of attorneys' fees recoverable as 'costs' determined by contract or judicial ascertainment officers' fees recoverable as cost fixed by law attorneys' fees recoverable as costs only by statute. Attorney fees are recoverable only when provided for by law or by contract and the amount is determined by contract or by judicial ascertainment, while the fees of officers that are recoverable as costs in a case are fixed by law. When such attorney fees are recoverable by law or by contract, they are properly costs in a case only when made so by statute.
'Costs' referred to when statute limits jurisdiction of court to stated amount exclusive of cost are statutory. When a statute may and does limit the jurisdiction of a court to stated amount 'exclusive of costs,' the costs referred to are those items that are by statute denominated costs or that are allowed by statute to be recovered as costs.
Recovery for 'costs' limited by statute unless specifically making attorneys' fees recoverable as costs. In this state the statutes specify the charges and fees that officers, not including attorneys, of a court may collect as costs in a case; and such legal consts and charges constitute the limit of recoveries as costs unless a statute specifically makes attorney fees or other matters recoverable as costs.
Costs properly recoverable not ordinarily required to be specifically claimed in pleadings. The costs that are properly recovered as such in the judgment as an incident to the main adjudication are ordinarily not required to be specifically claimed in the pleadings.
'Costs' referred to where statute limits jurisdictional value of matters litigated as exclusive of interest and costs stated. Where the statute limits the jurisdictional value of matters that may be litigated in a civil court of record to a stated sum 'exclusive of interest and costs,' the 'costs' referred to are those fees and charges that are ordinarily allowed in such actions and such other items as are legally and specifically made by statute a part of the costs that may be recovered as such in a case.
Attorneys' fees not included as 'costs' in determining jurisdiction of civil courts; attorneys' fees not made part of costs by statute. The civil courts of record are statutory courts and the provision of the statute limiting the jurisdiction of the court to matters that do 'not exceed, exclusive of interest and costs, the sum or value of three thousand dollars,' the 'costs' referred to are those items that are by statute denominated costs or that are allowed by statute to be recovered as costs, and do not include attorney fees unless such fees are by a statute denominated costs or are by statute allowed to be recovered as costs in the case. Section 4263, Revised General Statutes of 1920, does not make attorney fees recoverable as costs.
Kay, Adams & Ragland, of Jacksonville, for relator.
Milam & Milam, of Jacksonville, for respondents.
In an action brought in the civil court of record for Duval county upon an insurance policy, the plaintiff claiming 'the principal of said policy, interest at legal rate and a reasonable attorney's fee,' the following verdict was rendered:
'We, the jury, find for the plaintiff and assess its damages at $3,000.00 principal, $592.66 interest, and $538.90 attorneys' fees, total $4,131.56.'
A rule was issued from this court requiring the judge of the trial court and the plaintiff below to show cause why a writ of prohibition should not be issued commanding the judge not to award judgment in favor of the plaintiff, upon the showing that the verdict is in excess of the jurisdictional amount of the court. Section 3586, Rev. Gen. Stats. 1920. The judge answered:
'That the court considered and treated the attorney's fees claimed and adjudged in this cause as part of the costs and as not affecting the jurisdiction of the court, and prays that the rule nisi heretofore issued be quashed.'
The plaintiff below moved to quash the rule because 'the attorney's fees adjudged in the cause were properly a part of the costs and did not affect the jurisdiction of the court.' The relator moves for a writ of prohibition because no cause is shown for not issuing the writ.
The civil court of record is a statutory court whose jurisdiction as to the amount involved is defined by statute as follows:
'The civil court of record for each county, respectively, shall have exclusive original jurisdiction in all cases at law, including proceedings in attachment and garnishment, where the matter in controversy does not exceed, exclusive of interest and costs, the sum or value of three thousand dollars.' Chapter 8521, Acts of 1921.
See prior act, section 3310, Rev. Gen. Stats. 1920.
There is no general or controlling provision or principle of law to the effect that attorney fees that may by statute be recovered by the winning party against the losing party in a suit or action, are, or should be regarded as, costs in the case.
Such attorney fees are recoverable only when provided for by law or by contract and the amount is determined by contract or by judicial ascertainment, while the fees of officers that are recoverable as costs in a case are fixed by law. When such attorney fees are recoverable by law or by contract, they are properly costs in a case only when made so by statute. See Zinn v. Dzialynski, 14 Fla. 187.
When a statute may and does limit the jurisdiction of a court to a stated amount 'exclusive of costs,' the costs referred to are those items that are by statute denominated costs or that are allowed by statute to be recovered as costs.
In this state the statutes specify the charges and fees that officers, not including attorneys, of a court may collect as costs in a case; and such legal costs and charges constitute the limite of recoveries as costs unless a statute specifically makes attorney fees or other matters recoverable as costs. See sections 2951, 3084, 2952, 2891, Rev. Gen. Stats. 1920; 15 C.J. 21, 108, 114; 7 R. C. L. 781, 792; 11 Cyc. 24, 100, 104.
The statutes provide that 'in all cases the party recovering the judgment shall recover also all his legal costs and charges, which shall be included in the judgment;' 'and no fees shall be charged in any case, or for any official service performed or claimed to be performed by any officer within the state, unless said fees be expressly authorized and their amount be specified by law.' Sections 2951, 2952, Rev. Gen. Stats. 1920.
In section 4263, Revised General Statutes 1920, it is provided that, when judgment is rendered in favor of the beneficiary in an insurance policy, This statute does not make the 'fees or compensation' allowed for plaintiff's attorney a part of the plaintiff's 'legal costs and charges' that are referred to in section 2951 and does not authorize such attorney fees to be recovered as costs in the case.
The costs that are properly recovered as such in the judgment as an incident to the main adjudication are ordinarily not required to be specifically claimed in the pleadings.
In United States Fire Ins. Co. v. Dickerson, 82 Fla. 442 90 So. 613, it was held that 'attorney's fee provided for by statute [section 4263, Rev. Gen. Stats. 1920] to be paid by insurance companies, corporations or associations which unsuccessfully defend actions upon policies of insurance issued by them, should be demanded in the declaration,' as if the action sought to enforce a penalty, 'and that the attorney's fees provided for by our statute is in the nature of a penalty,' and that 'our statute provides for the penalty to be paid by the insurance company which unsuccessfully defends an action upon a policy of insurance issued by it.' The holding that the attorney fees allowed by the statute here considered is 'in the nature of a penalty,' and that it 'should be demanded in the declaration, is in effect a holding that the attorney fees allowed by this statute are not intended to be a part of the costs in the case and are not to be recovered as costs; but, as the statute expressly provides, such attorney fees 'shall be included in the judgment or decree rendered in...
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