McIntosh v. Knox

By the Court, Coleman, J.: Respondents brought suit in the district court of Nye County to recover damages for the wrongful attachment of a judgment which had been assigned to them, and for attorney’s fees expended in procuring the release of the funds thus attached. Judgment was rendered in the lower court in favor of respondents as prayed, and from such judgment and an order denying a new trial this appeal is taken. We will not undertake to state all of the details of the case, but such facts only as will be necessary to a full understanding of the questions involved. R. P. Dunlap brought suit in the District Court of the United States for the District of Nevada to recover judgment against the Montana-Tonopah Mining Company, of which Knox was president, for quite a large sum, and in due time recovered judgment. Thereafter the judgment was assigned by Dunlap to McIntosh & Cooke, who gave notice thereof to the judgment debtor, after which an appeal was taken by the company to the United States Circuit Court of Appeals, which later affirmed the j udgment of the lower court. McIntosh & Cooke again gave notice to the company of the assignment, which was brought to the attention of Knox, after which, and before the j udgment was paid, Knox brought suit in the — 409 — United States District Court to recover judgment against Dunlap, who left the state before personal service was made upon him, and attached the judgment theretofore assigned by Dunlap to McIntosh & Cooke by causing garnishment papers to be served upon the Montana-Tonopah Mining Company, of which Knox was still the president. The Montana-Tonopah Mining Company filed in the United States District Court its bill of interpleader, alleging the matters hereinbefore stated, and prayed for an order allowing it to pay the money over to the clerk of the court, to be awarded to the person or persons finally found by the court to be entitled to it. Such an order was made, and the money was paid accordingly. McIntosh & Cooke and Knox appeared in the interpleader proceedings and filed their answers to the bill. On the final hearing the court awarded the money to McIntosh & Cooke. 1. The first contention made by counsel for appellant is that the court erred in rendering judgment in 'favor of the respondents for damages alleged to have been sustained by them by the wrongful garnishment of the judgment which had been assigned to them by Dunlap. On this point counsel clearly state their theory in their brief, as follows: “Under the great weight of authority, an action for damages, for wrongful attachment, must be grounded upon one of the three following premises: (1) There must be malice or want of probable cause; or (2) the action must be on the attachment bond; or (3) there must be some specific statutory authorization for the action.” We think the point would be well taken in a suit for damages by a defendant in an action wherein the property attached belonged to the party sued, but such is not the case here. McIntosh & Cooke were not the parties to the attachment suit, but were strangers to it. The rule of law applicable to the situation here is laid down as follows: — 410 — “Where an officer levies a writ of attachment on the property of a stranger, attachment plaintiff is liable to the claimant of the ownership and right of possession thereof not only when he directed the wrongful levy, but also when he subsequently adopts or ratifies the officer’s acts, independently of any bond, and jointly with the attaching officer.” (4 Cyc. 764.) See, also, Peterson v. Foil, 67 Iowa, 402, 25 N. W. 677; Moores v. Winter, 67 Ark. 189, 53 S. W. 1057; Lee Merc. Co. v. Chapman, 9 Kan. App. 374, 58 Pac. 125; Blakeley v. Smith, 16 Ky. Law Rep. 109, 26 S. W. 584; Knight v. Nelson, 117 Mass. 458; Perrin v. Claflin, 11 Mo. 13; Vaughn v. Fisher, 32 Mo. App. 29; Cole v. Edwards, 52 Neb. 711, 72 N. W. 1045; Dyett v. Hyman, 129 N. Y. 351, 29 N. E. 261; Adams v. Savery House, 107 Wis. 109, 82 N. W. 703; Riethmann v. Godsman, 23 Colo. 202; Frick-Ried v. Hunter, 148 Pac. 83; Taylor v. Hines, 31 Mo. App. 622; Comly v. Fisher, Taney’s Dec. (U. S.) 121; 6 C. J., p. 416, sec. 966. May, 1917, issue of Case and Comment, on p. 1023, calls attention to the note to the case of Davies v. Thompson (L. R. A. 1917b, 395) ; but as that volume is not yet in our library, we have not been able to avail ourselves of the note in question. 2. But it is insisted that in view of the interpleader proceedings, which were instituted the day after the attachment suit was commenced, pursuant to which the money due under the judgment obtained by Dunlap was paid into court, the attachment proceedings were automatically terminated and that they lost their force and effect, and consequently practically no damage was caused respondents by the conduct of appellant in instituting the attachment suit and in causing the levy thereunder. We cannot look at the matter in this light. In view of the departure of Dunlap from the state, no personal service of process was had upon him, and the jurisdiction of the court to inquire into the controversy depended upon the contention that property belonging to him was seized and held by attachment proceedings. — 411 — If it had been conceded by Knox in the main suit that the attachment had lost its efficacy, that case would have fallen, and the subsequent proceedings along with it; hence it was of vital importance to Knox that the force and effect of the attachment proceedings be maintained which he seems to have realized by his conduct in the interpleader suit. Consequently we cannot escape the conclusion that in legal effect the attachment still held good. There is one peculiar circumstance in this case. As we have said the writ of attachment in Knox v. Dunlap was served December 80, 1912, and the bill of interpleader was filed in the federal court at Carson City the following day. Carson City is about nine hours’ travel from Tonopah, where the office of the Montana-Tonopah Mining Co. is situated, and where its attorney and secretary resided. Mail leaving Tonopah on the morning of December 31, 1912, would not have reached Carson City on that day until about 6 o’clock in the evening, after the office of the clerk of the United States District Court was closed. Hence the inference is that the bill of inter-pleader was mailed in Tonopah on or before the morning of December 30, the very day the attachment was served in the suit of Knox v. Dunlap. In the light of these facts, we cannot escape the conclusion that the Montana-Tonopah Mining Company knew of the contemplated attachment in the suit of Knox v. Dunlap, and in anticipation thereof had caused to be prepared the bill of interpleader before the'writ of attachment had been served. If Knox did not inspire this quick action, who did? Yet he insists that because of the interpleader proceedings he must be relieved from liability in the attachment suit. But be this as it may, the attachment suit was in full force and effect during all of the time the interpleader suit was pending; and, had the inter-pleader suit been dismissed for any reason, the money was still tied up in the attachment suit, according to' appellant’s contention, as shown by the prayer in his answer in the interpleader suit. — 412 — It is contended that, if respondents are entitled to j udgment in any amount, it should not be for the amount for which judgment was rendered in the lower court, for the reason that the delay of the federal court in rendering j udgment in the interpleader proceedings was due to the neglect of counsel for respondents to file briefs, and that the judgment should be reduced in an amount equal to the interest for that period of delay. The trial court found that there was nothing in the evidence to justify this contention, and in view of the record we do not feel justified in holding that the conclusion thus reached was reversible error. 3. The next question is: Did the trial court err by including in its judgment, as an element of damage, the sum of $600, paid by respondents as attorney’s fees in the suit in the federal court? We think not. It was necessary to a protection of their rights that they appear and show their title to the judgment under the assignment. No money judgment was sought against the respondents in the suit in the federal court in which the money was attached, or in the inter-pleader. action. While, so far as we are informed, the attachment statutes of all the states provide that the plaintiff in an attachment suit shall give a bond to indemnify the defendant against all damages in case it should be adjudged that the attachment proceedings are wrongfully instituted, none of such statutes specifically designates the attorney’s fee incurred by the defendant in defending the attachment proceedings as an item of damage. Yet the great weight of authority holds that such an expense is an item of damage. (2 R. C. L. 909; Plymouth G. M. Co. v. U. S. Fidelity Co., 88 Pac. 567; Parish v. Van Arsdale Co., 140 Pac. 835; Balinsky v. Gross, 128 N. Y. Supp. 1062; Drake on Attachments, 7th ed. sec. 175; Boatwright v. Stewart, 37 Ark. 623; Fry v. Estes, 52 Mo. App. 1; C. J. 528, 529; 4 Cyc. 878.) This rule is not only sustained by the great weight of authority, but we think is founded on sound reason as well. Attachment proceedings are purely statutory in — 413 — practically all of the states (2 R. C. L., p. 801), and are very different from an ordinary action at law to récover judgment for money due. It is a harsh remedy, and for that reason one who brings the action must pay the damage sustained by the adversary in case the proceedings are wrongfully instituted. In many cases the defendant in the proceedings cannot be adequately compensated for the damages sustained, and we think the courts are amply justified in holding that attorney’s fees should be allowed the defendant in case of a wrongful attachment. - It is clear that a stranger to a suit whose property is wrongfully attached may recover damages, as we have shown, and we see no reason why necessary attorney’s fees incurred in procuring the release of property from a wrongful attachment should not be considered as an item of such damage. If it is an item of damage in the one case, why not in the other ? He who levies upon the property of a stranger does so at his peril. Such stranger should be saved harmless, and this cannot be done unless he is reimbursed his outlay in procuring the release of his property. It is no doubt true that cases may arise where this rule may work a hardship, but that may be said of every rule. 4. It is next contended that the question of attorney’s fees is res adjudicatei. We think not, under the circumstances. There was no pleading in the federal court wherein the question of attorney’s fees was made an issue; and, if that matter might have been adjudicated under appropriate issues, no issue of that character having been involved, and the question not having been tried and the court not having undertaken to consider it, there is nothing upon which to sustain the contention. (Gulling v. Washoe County Bank, 29 Nev. 259, 89 Pac. 26.) Perceiving no error in the record, it is ordered that the judgment appealed from be affirmed.