August v. Gonsalves

HOUSER, J.

This is an appeal from a judgment rendered in favor of defendants in an action on a bond for damages arising out of the alleged wrongful appointment of a receiver in a former action between the same parties— the position of the parties therein being reversed; that is to say, the plaintiff herein was the defendant in the former action and the plaintiff in that action is the defendant in this action.

The specific damages claimed by plaintiff herein were for attorney’s fees in the sum of $1,300, alleged to have been

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paid by him to counsel representing him in the action in which the receiver was appointed.

On the trial of the present action, among other things, the court found:

“That the said Manuel Gonsalves did not procure the appointment of said receiver wrongfully, maliciously and without sufficient cause.

“That said John August has paid to Ms attorneys as aforesaid the sum of $1300, but that said sum was not paid for the purpose of procuring a dissolution of the receivership in said action No. 4771. That said sum of $1300 was not and is not a reasonable sum for attorney’s fees in said action for obtaining the discharge of said receiversMp. That the sum of $1300 was a gross sum charged by said attorneys in connection with said action No. 4771, and that no separate charge was made by said attorneys for any work in connection with the receivership.”

The record herein shows that on the day on which the receivership action was commenced the defendant employed attorneys to represent him generally therein, and that no receiver was appointed in such action until one week thereafter. In the case of

Lambert

v.

Haskell,

80 Cal. 611, 624 [22 Pac. 327, 331], it is said: “ ... In the first place, the liability of the sureties commences with the giving of the undertaking. They are not liable for counsel fees or loss of profits previously expended or incurred, ...”