Murphy v. F. D. Cornell Co.

California Court of Appeal Dec 16, 1930 No. Docket No. 7432.Published

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Holding. The court held that an award of attorney's fees to a party who did not prevail on the claim is improper, and that costs for obtaining property descriptions for attachment are not taxable when their necessity is not proven.

Issues

Whether attorney's fees may be awarded to a party who did not prevail on the underlying claim.
Whether the trial court abused its discretion in allowing costs for the levy of an attachment.
Whether the expense of obtaining a property description for attachment is a taxable cost.

Disposition. Modified and affirmed.

Quotations verified verbatim against the opinion

“it has been held that an allowance of attorney’s fees to the losing party—which was the ease here—is improper.”

“the determination of the items allowable for costs being left largely to its discretion; and unless an abuse of discretion is shown such determination will not be disturbed on appeal”

“in the absence of evidence showing its necessity, the same should have been stricken from the cost bill”

THE COURT.

An appeal by the defendant from a portion of the judgment in the above case awarding attorney’s fees, and from an order refusing to tax certain items of plaintiff’s costs in the action.

The complaint set forth separate causes of action on two promissory notes and also common counts for work and labor. The first note was for $4,947.50 with interest, which was executed by defendant corporation to the plaintiff. The second note, which was for $2,500 with interest, was executed by O. L. Bergen and Persis Bergen to the defendant, and by the latter indorsed to plaintiff as security for the first note. The court entered judgment against defendant on the first note for the principal and interest due; on the second no recovery was allowed except for attorney’s fees in the sum of $500, and on the common counts judgment was entered for the defendant.

Plaintiff filed a cost bill, from which it appears that he attached real and personal property of the defendant in several counties. The items of which defendant complains, and which among others he moved to tax, were a sum alleged to have been expended in the levy of the attachment upon a number of parcels of land in Riverside County, namely $261.10, and the expense of “obtaining a description of property for attachment” in the sum of $36.70.

The note upon which the attorney’s fees was allowed contained the following provision: “ . . . and in case suit is brought hereon or attorney be employed or expenses

[454]

incurred to compel the payment hereof, a reasonable sum in addition as attorney’s fee.” It is clear from this provision that an attorney’s fee might be allowed in a proper case where suit was brought to compel payment and an attorney employed; but such fees are in the nature of special damage' under the contract

(Prescott

Grady,

91 Cal. 518 [27 Pac. 755] ;

De Jarnatt

Marques,

Murphy v. F. D. Cornell Co.

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THE COURT.

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