Miller v. Hays

Elliott, J. Suit by Miller, the appellant, against I-Iays on an arbitration bond. The court below sustained a demurrer to the complaint and -rendered final judgment for’ costs for the defendant. Was this ruling correct? This is the only question in the case. The bond sued on, after reciting that the parties agreed to submit all matters in dispute between them to the arbitrament of certain persons named, bound them, each to the [381] other, “ faithfully to abide and carry out the award of said arbitrators.” The complaint alleges that the arbitrators awarded in favor of the plaintiffj Miller, against Hays, the sum of $4,329. The breaches alleged are that the defendant did not abide said award, but on the contrary refused to pay the plaintiff the sum so awarded; that the plaintiff' was therefore compelled to and did prosecute a suit on the award to recover the sum so awarded; that the defendant contested said suit, and when a judgment was recovered thereon against him he appealed the same to the Supreme Court, where the judgment was affirmed, and that the plaintiff Was compelled to and did pay out the sum of $500 to attorneys for prosecuting said suit in the Circuit and Supreme Courts; that after the affirmation of said judgment by the Supreme Court, Hays brought suits on certain notes against the plaintiff that were included in and settled by said award, and the plaintiff was thereby compelled to pay out to attorneys, in defending said suits, the sum of $90, and also the sum of $75 in procuring a transcript of the proceedings and judgment on the award, to be used as evidence on the trial of the suits on said notes; for which several amounts he claims judgment. We think the court did light in sustaining the demurrer to the complaint. We are not aware of any principle of law justifying a successful party in a suit to claim to recover of his adversary his attorney’s fees, or his personal expenses in attending court. This court so held in Comegys v. The State Bank, 6 Ind. 357, and Davis et al. v. Crow, 7 Blackf. 129. Billingsly v. Dean, 11 Ind. 331, to which we are referred by the appellant, was a suit upon a promissory note, in which it was stipulated that the maker should pay all attorney’s fees and costs incurred in its collection by suit, and this court held that the attorney’s fees'were properly taxed to the defendant under the express stipulation in the note to that effect. That case is not in point here. Davis et al. v. Crow, supra, was an action on a replevin [382] bond, and it was held that the plaintiff could not recover the fees paid to his attorney in defending the replevin suit, nor compensation for his own attendance at court in that suit, nor his attorney’s fee paid in the suit on the bond. W. S. Holman, for appellant. W. W. Tilley> for appellee. We think the principle announced in that case is correct, and is decisive of the question presented in this ease. There is no complaint that the plaintiff did not recover his proper costs in defending the suits on the notes referred to in the complaint, and we must presume that if the expense of procuring a transcript of the judgment on the award became a proper item of costs in those cases, it was properly included in the costs recovered. The judgment is affirmed, with costs.