Superior Glass Co. v. Dist. Court of Sixth Judicial Dist

• Decision Date: 19 November 1926
• Docket Number: No. 466.,466.
• Citation: 135 A. 50
• Parties: SUPERIOR GLASS CO. v. DISTRICT COURT OF SIXTH JUDICIAL DIST.
• Court: Rhode Island Supreme Court

135 A. 50

SUPERIOR GLASS CO.

v. DISTRICT COURT OF SIXTH JUDICIAL DIST.

No. 466.

Supreme Court of Rhode Island.

Nov. 19, 1926.

Attachment suit by the Superior Glass Company against one McCormick. The district court of the Sixth judicial district, which issued the writ, denied a petition by the attaching officer for an allowance for storage and custody of the attached property, and plaintiff petitions for a writ of error. Petition denied.

Charles S. Slocum, of Providence, for petitioner.

Maurice Robinson and Charles M. Robinson, both of Providence, for respondent.

BARROWS, J. Heard on petition for writ of error. Plaintiff attached one McCormick's automobile on September 24, 1926, under authority of a writ issued from the district court of the Sixth judicial district, returnable October 6, 1920. McCormick paid into court on October 8 the sum of $10, which he admitted to be due. The amount was insufficient to exonerate him from future costs. Plaintiff petitioned for leave to sell the attached property. This petition was heard and denied on October 11. On October 22, the records shows: "Decision for the plaintiff for $10 and costs."

On October 1, the attaching officer's prayer for allowance was granted by an order of court reading: "Allowed for custody and keeper's fees for the sum of $5 for one day." On October 23 the same officer filed another sworn petition for an allowance of $49 for storage and custody, which was denied in the following language:

"October 26, 1926.

"One day's custody having been allowed officer on prior petition, upon hearing of this application of the officer for allowance, I find that on the 24th day of September, 1926, the defendant tendered to the officer a proper bond with surety in the penal sum of the damages laid in the writ, and that the officer unjustifiably refused to accept said bond and surrender to the defendant the goods and chattels attached. This application denied.

"Frederick Eueckert, Justice."

This denial constitutes the error of law complained of.

Since no question has been raised as to plaintiffs standing as petitioner for a writ of error, although his petition fails to aver that the amounts disallowed had been paid by him to the officer or any obligation to pay same had been incurred (cf. McCarthy v. Hughes, 36 R. I. 66, 88A. 984, Ann. Cas. 1915D, 26), we shall treat the case as if properly before us on the merits.

Petitioner argues that allowance of the officer's claim is provided for in section 1, c. 345, Gen. Laws 1923 (5076), awarding costs to the party prevailing "except where otherwise specially provided, or as justice may require, in the discretion of the court," and he urges that the court misused or failed to use the discretion required of it. The officer's petition under oath, however, follows the requirements of Gen. Laws 1923, c. 417, § 12. This section provides for the allowance of such sum "as shall on examination be found to be reasonable." The making of such allowance calls for the exercise of judicial discretion. It requires a determination of what is just and proper under the circumstances presented to the court. The judge must apply his reason and experience to the facts shown. A claim for custody and storage greatly disproportionate to the claim sued for warrants judicial scrutiny to prevent abuse of the court's processes. It is not a satisfactory answer to say that the party against whom such costs may be chargeable, if a defendant, may give a bond acceptable to the attaching officer or pay into court the ad damnum of the writ. The officer for no valid reason may decline...