Williams v. Fidelity & Deposit Co. of Maryland
| Decision Date | 03 February 1908 |
| Citation | 42 Colo. 118,93 P. 1119 |
| Parties | WILLIAMS v. FIDELITY & DEPOSIT CO. OF MARYLAND. |
| Court | Colorado Supreme Court |
Error to District Court, City and County of Denver; John I Mullins, Judge.
Action by Frederick A. Williams, executor of Caroline M. Rice deceased, against the Fidelity & Deposit Company of Maryland. There was a judgment for defendant, and plaintiff brings error. Affirmed.
F. A. Williams, pro se.
Guy Lee R. Stevick, for defendant in error.
Action on an appeal bond. The plaintiff in error, Williams, is executor of the last will and testament of Caroline M. Rice deceased. The will was contested in the county court of Arapahoe county by Edward E. Rice and Caroline E. Rice, and there sustained and admitted to probate. The contestants perfected an appeal to the district court, and gave an appeal bond signed by defendant in error as surety, which bond was conditioned that contestants 'shall abide, fulfill, and perform whatever judgment may be rendered against them in said district court, and shall pay all damages which the said Frederick A. Williams, * * * executor as aforesaid, may sustain, by reason of such appeal and the delay incident thereto, and shall pay all costs.' On trial de novo in the district court the will was again sustained and admitted to probate, whereupon the executor Williams brought this action against defendant in error, surety on the appeal bond, to recover the sum of $500 which he had paid as attorney's fees in the district court on the appeal. The judgment was for defendant, and plaintiff sued out this writ of error.
Counsel are agreed that at common law attorney's fees paid in resisting an unsuccessful appeal could not be recovered as damages on the appeal bond. Plaintiff in error admits that, in the absence of a statute or contract so providing, they are not now recoverable in this state, but his contention is that the condition in this bond provides for them. He says that in the highest courts of most of the states of the Union, though not in the federal courts, attorney's fees disbursed in securing the dissolution of a writ of attachment or injunction may be recovered in an action on the bond as a part of the legal damages sustained by the wrongful issuing of the writ when the condition of the bond, on which it was based, provides for the recovery of 'damages.' This court and our Court of Appeals have so held in actions on injunction bonds (Belmont M. Co. v. Costigan, 21 Colo. 465, 42 P. 650; Church v. Baker, 18 Colo.App. 369, 71 P. 888), and possibly the same rule would be followed in actions upon attachment bonds. The tendency of the courts is not to extend the meaning...
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