Soule v. United States Fidelity & Guaranty Co.

CASHIN, J.

— An appeal from a judgment in an action to recover damages against appellant as surety upon an undertaking on attachment.

The undertaking was filed and an attachment issued and levied on property owned by respondent in an action for money had and received brought against him by one Collins, the trial of which resulted in a judgment for respondent. No proceedings were had to dissolve or vacate the attachment, which was discharged by virtue of the judgment.

In the instant case there was included in the amount for which judgment was entered a sum paid as a counsel fee in defending the action mentioned and a further expenditure made in that action. It is claimed by appellant that these amounts were improperly allowed, and the first question presented by the appeal is whether the counsel fee was a proper element of damage.

The first California case in which the question was considered is

Heath

v.

Lent,

1 Cal. 410, wherein it was held that counsel fees paid by the attachment debtor in defense of the suit were not recoverable in an action on the attachment bond.

In

Ah Thaie

v.

Quan Wan,

3 Cal. 216, an action on an injunction bond, a judgment for attorneys’ fees paid to procure the dissolution of the injunction was affirmed. The court in that case considered the effect of

Heath

v.

Lent, supra,

and held that in so far as it might be said to decide that attorneys’ fees paid to procure the dissolution of an injunction were not recoverable the decision was erroneous. As was said in

Elder

v.

Kutner,

97 Cal. 490, 494 [32 Pac. 563] : “The case of

Ah Thaie

v.