U.S. Fidelity & Guaranty Co. v. Zidell-Steinberg Co.
| Decision Date | 26 November 1935 |
| Parties | UNITED STATES FIDELITY & GUARANTY CO. v. ZIDELL-STEINBERG CO. et al. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.
On motion to modify former opinion.
Motion granted.
For prior opinion, see 50 P.2d 584.
John W. Reynolds, of Portland (Reynolds, Flegel & Smith, of Portland, on the brief), for appellants.
W. K Phillips, of Portland (L. J. Balbach and Sheppard & Phillips all of Portland, on the brief), for cross-appellant United States Fidelity & Guaranty Co.
Allen H. McCurtain, of Portland (William L. Harrison, of Portland, on the brief), for cross-complainant.
W. C. Winslow, of Salem, for respondents.
A motion has been presented by the Gabriel Powder & Supply Company to modify the decision and order of this court with reference to the disallowance of attorneys' fees claimed by said movent and by Steinbach Iron Works and Tillamook Iron Works.
The basis of this motion is the order of May 14, 1935, wherein plaintiff's appeal from the decree of the circuit court was dismissed. In rendering the original opinion, 50 P.2d 584, the writer overlooked this order.
The principle sought to be invoked, in support of said motion, is that a litigant, who does not appeal, is not entitled to a more favorable judgment than the one given by the trial court. Attorneys' fees, however, are only incidental to the judgment, being analogous to costs and disbursements. Spicer v. Benefit Ass'n of Ry. Employees, 142 Or. 574, 601, 17 P.2d 1107, 21 P.2d 187, 90 A. L. R. 517. As stated in the opinion, the record on this appeal does not justify the allowance of attorneys' fees to the parties mentioned. By rule 12, this court reserves the right in furtherance of justice to take cognizance of error apparent on the face of the record. The judgment rendered on appeal herein against plaintiff is less favorable to plaintiff than the one entered by the trial court.
In reading the record, it appears to the writer that when movent's attorney mentioned the matter of attorneys' fees, the trial court at once announced that movent and its associates would be allowed such fees. The writer found no stipulation on the subject. It further appeared to the writer that the attorneys' fees and costs in the actions involved were not any part of a judgment or judgments in such actions or any or either of them. In that...
To continue reading
Request your trial
-
Maryland Casualty Co. v. Alford
...Co. v. Hyde, 148 Or. 229, 34 P.2d 930, 933, 35 P.2d 980; United States F. & G. Co. v. Zidell-Steinberg Co., 151 Or. 538, 50 P.2d 584, 591, 51 P.2d 687; Witter v. Massachusetts Bonding & I. Co., 215 Iowa 1322, 247 N.W. 831, 833, 834, 89 A.L.R. Fidelity & Deposit Co. v. Sholtz, 123 Fla. 837, ......
-
Paulsell v. Peters
... ... & G. Co. v ... Zidell-Steinberg Co., 151 Or. 538, 50 P.2d 584, 51 P.2d ... 687; Witter v. Mass ... Co., 215 Iowa ... 1322, 247 N.W. 831, 89 A.L.R. 1065; Fidelity & Deposit ... Co. of Maryland v. Sholtz, 123 Fla. 837, 168 So. 25; ... 701, 248 P. 434; 1 Brandt, ... Suretyship & Guaranty, 3d Ed., 1905, § 480; Stearns, Law of ... suretyship, Feinsinger's ... ...
-
State v. De Jonge
... ... before us. The record discloses that in addition to arguments ... made by two ... ...
-
Crouch v. Pixler
...730; Muckle v. Hill, 32 Idaho 661, 187 P. 943; United States Fidelity & Guaranty Co. v. Zidell-Steinberg Co., 151 Or. 538, 50 P.2d 584, 51 P.2d 687; 7 Am.Jur., Bills and Notes, Section 142, p. We therefore hold that where an action is brought upon a written contract as in the present case, ......