Reachi v. National Automobile & Casualty Insurance

EDMONDS, J.

Manuel Reachi is claiming damages assertedly sustained by him in clearing title to real property from the lien of an attachment which was wrongfully obtained.

[810]

His appeal is from a judgment which followed an order sustaining the surety’s demurrer to the complaint without leave to amend.

At the time the attachment was issued, Reachi alleges, he was a resident of Mexico City and the owner of certain land in Los Angeles. Damages assertedly caused by the negligence of Reachi in making an excavation upon his land were claimed by the adjoining owner. He filed a bond executed by- the respondent surety, and obtained a writ of attachment. The writ was levied on Reachi’s property pursuant to section 537, subsection 3, of the Code of Civil Procedure.

Reachi did not move to set aside the levy or recall the writ but, following a trial of the action on the merits, judgment was rendered in his favor. That judgment is now final. As he states the situation in his complaint, “all of the proceedings, pleadings and documents with respect to the levy of said attachment were valid and regular on their face and for that reason . . . [he] . . . made no motion nor brought any proceeding to discharge or dissolve said attachment, as said motion or proceeding would have been unsuccessful and an idle and futile act, and the only manner by which said attachment could be dissolved or discharged was to defend and win the above mentioned action on its merits.”

To defend the action, Reachi alleges, it was necessary for him to travel from Mexico City to Los Angeles to testify at the trial at an expense of $1,500, and to incur liability for attorney’s fees of $2,500. According to the complaint, the issues to be tried required him to employ a licensed surveyor who charged $505 to make an examination of the excavation and the alleged damage caused by it, prepare maps, exhibits, blueprints and other documents, and testify at the trial. Reachi alleges that, after demand, payment of these sums has been refused by both the plaintiff in the principal action and by the surety.

The demurrer of the surety was sustained without leave to amend and judgment entered accordingly. As grounds for reversal of the judgment Reachi contends that, because the gravamen of the present action is a wrongful attachment, he is entitled to the expenses necessarily incurred by him in clearing his title of the attachment. He admits that, ordinarily, attorney’s fees incurred in defense of the principal suit, as distinguished from those paid for procuring a dissolution of an attachment, are not recoverable as an item of damages. However, he contends that where the attachment is regular on