The Columbia Knickerbocker Trust Company and E. D. Levinson & Company v. Finney

• Citation: 144 P. 222,93 Kan. 302
• Decision Date: 14 November 1914
• Docket Number: 18,934,18,935
• Court: Kansas Supreme Court
• Parties: THE COLUMBIA KNICKERBOCKER TRUST COMPANY and E. D. LEVINSON & COMPANY, Plaintiffs, v. C. C. FINNEY, as Mayor of the City of Atchison, et al., Defendants

144 P. 222

93 Kan. 302

THE COLUMBIA KNICKERBOCKER TRUST COMPANY and E. D. LEVINSON & COMPANY, Plaintiffs, v. C. C. FINNEY, as Mayor of the City of Atchison, et al., Defendants

Nos. 18,934, 18,935

Supreme Court of Kansas

November 14, 1914

Decided July, 1914.

Original proceeding in mandamus.

SYLLABUS

SYLLABUS BY THE COURT.

1. MANDAMUS--No Peremptory Writ Issued--Damages Allowed. Under the provisions of section 723 of the civil code, providing for the allowance of damages in actions of mandamus, the court may allow the plaintiff damages sustained without the issuance of a peremptory writ.

2. SAME -- Defaulted City Bonds -- Alternative Writ Issued--Bonds Paid--Attorneys' Fees and Expenses Allowed. The holder of defaulted bonds issued by a city brought mandamus to compel the officers of the city to levy a tax to pay the bonds. An alternative writ issued, and thereafter the city paid the plaintiff the full amount due on the bonds. Held, that the plaintiff is entitled to an allowance of attorneys' fees and expenses as damages in the action, notwithstanding no peremptory writ issued.

Charles Blood Smith, Samuel Barnum, both of Topeka, and Davies, Auerbach & Cornell, of Chicago, Ill., for the plaintiffs.

James W. Orr, Walter E. Brown, and T. A. Moxcey, all of Atchison, for the defendants.

OPINION

PORTER, J.

The plaintiff in each of these cases has filed an application for the allowance of damages, including the fees and expenses of attorneys. In July, 1913, when the cases were commenced, there was a hearing before the court upon an application for the allowance of an alternative writ of mandamus to compel the defendant officers of the city of Atchison to levy a tax for the payment of defaulted bonds issued by the city. The plaintiffs owned $ 55,000 of the bonds; the defendant officers had recognized the validity of the bonds but had failed and refused to make any levy for paying the same.

After the court had made an order allowing the alternative writ, and on or about September 30, 1913, as appears from the stipulations on file, the city of Atchison paid the plaintiffs the full amount due upon the defaulted bonds. By stipulations filed here the parties have agreed upon what would be a reasonable attorney's fee in each of the cases, and also upon the amount actually expended by the plaintiff for the traveling expenses of its New York counsel in attending the hearing for the allowance of the alternative writ. The defendants object to the allowance of any damages on the ground that no final order or judgment was ever made by the court nor any peremptory writ issued, and that no tax was levied by the city to apply on the bonds. It is further insisted that plaintiffs are estopped to claim any damages for the reason that after the institution of these suits, and before any judgment of the court, the plaintiffs voluntarily surrendered the bonds to the city and accepted payment thereof without making any claim for damages, and without obtaining any order or judgment of this court. The defendants rely upon the language of section 723 of the civil code, providing for the allowance of damages in proceedings of this kind, which reads:

"If judgment be given for the plaintiff, he shall recover the damages which he shall have sustained, to be ascertained by the court or jury, or by referees, as in a civil action, and costs; and a peremptory mandamus shall also be granted to him without delay."

It is contended that unless there has been a judgment directing the issuance of a peremptory writ of mandamus, no allowance of damages is proper; that the question of damages in mandamus is merely...