L. BUCKI & SON LUMBER CO. v. FIDELITY & DEPOSIT CO. OF MARYLAND; FIDELITY & DEPOSIT CO. OF MARYLAND v. L. BUCKI & SON LUMBER CO., 109 F. 393

McCORMICK, Circuit Judge. The proceedings to review which these writs of error were sued out were had in an action brought by the L. Bucki & Son Lumber Company against the Fidelity & Deposit Company of Maryland on two attachment bonds given in two actions brought by the Atlantic Lumber Company on October 1, 1897, on which bonds the Fidelity & Deposit Company of Maryland bound itself as surety. The cases in which the bonds were given are sufficiently stated in the decisions of this court as reported in 35 C. C. A. 59, 92 Fed. 865-867, and 35 C. C. A. 590, 93 Fed. 765, 766.

The purpose of this action on the bonds is to recover all costs and damages sustained by the plaintiff therein in consequence of the improper suing out of the writs of attachment in the cases in which the bonds were given, according to the condition of the bonds and of the statute requiring them. This action was brought in the state court, and removed to the United States circuit court by the defendant. The declaration consists of two counts.

Each of these counts respectively sets forth the affidavit upon which the writ was issued, the bond, the writ, and a description of the property levied on, and alleges that for several years prior to and on the day the writs were levied the plaintiff had been engaged in doing, and was then engaged in doing, a prosperous business of -manufacturing and selling hard pine timber and lumber; that the daily product of its mill was about 100,000 feet; that the interruption, suspension, and destruction of its business and credit in consequence of the attachments, and the costs, attorney’s fees, and expenses incurred in preparing for and on the trial of the motions tó dissolvé the attachments, and other damages occasioned thereby, had damaged the plaintiff in stated large amounts; and that the damages sustained had not been paid.

The defendant filed numerous pleas, all of which were disposed of on demurrer, except the plea of non damnificatus, and the issues raised by that plea were the only issues of fact tried by the jury.

Among these issues of fact the court submitted to the jury the question of the amount of the reasonable attorney’s fees which the plaintiff was entitled to recover in words and figures following, to wit: “In making up your verdict you will find and assess the total amount of damages the plaintiff has sustained, exclusive of reasonable attorney’s fees for services rendered by the plaintiff’s attorneys in preparing for and on the trial of the motions to dissolve the two writs of attachment; and, in addition to the amount so found, you will also find and assess separately such sum of money as, upon the evidence, you believe to be a reasonable compensation for the services rendered by the plaintiff’s attorneys in preparing for the trial and on the trial of the two motions to dissolve the attachments, and in resisting the efforts of the Atlantia, Lumber Company to have the judgment dissolving such attachments reversed in the United States circuit court of appeals and in the supreme court of the United States.

The court has prepared the form of your verdict as follows: ‘We, the jury, find for the plaintiff, and assess its actual damages, exclusive of attorney’s fees, at -.

And if the court be of the opinion that, as a matter of law, the plaintiff may recover for such attorney’s fees, we further find for the plaintiff for the amount of-as a reasonable and just fee for the services proven.’ ” Under the foregoing instruction, and other instructions which the court gave, the jury returned a verdict for the plaintiff, assessing its actual damages, exclusive of attorney’s fees, at $10,880; and as to the attorney’s fees the verdict proceeds in these words: “And if the court be of the opinion that, as a matter of law, the plaintiff may recover for such attorney’s fees, we further find for the plaintiff for the amount of $7,500 as a reasonable and just fee for the services proven.” On the return of this verdict the plaintiff moved the court to enter judgment in its favor against the defendant for the full amount thereof, including the sum of $7,500 as attorney’s fees for services in obtaining a dissolution of the attachments.

After due consideration of the matter, the circuit court refused to enter judgment-on the verdict for $7,500 attorney’s fees, and rendered its judgment in favor of the plaintiff and against the defendant for the sum of $10,895.04 damages, and for costs. Each of the parties sued out a writ of error. Thirty-seven errors are assigned by the L. BucM & Son Lumber Company on its writ of error, and 89 by the Fidelity & Deposit Company on its writ of error. The respective assignments together fill 27 pages of the printed records.

Of these numerous errors thus elaborately assigned we deem it necessary to notice only one (the- thirty-fifth) assigned by the Bueki Company. It is stated in these words: ' “The court erred in excluding from the judgment the sum of $7,500 which the jury found specially in their verdict as a reasonable compensation for plaintiff’s attorneys for services rendered on the trial of and preparing for the trial of the motion to dissolve the attachment. This was error on the following grounds, to wit:

(1) Because the amount of reasonable attorney’s fees was an element of damages sustained by the attachments; (2) because it was a question of local law, arising upon a statute of Florida authorizing 'the issue of attachments, and providing the condition of the bond upon which attachments can issue; (31 because the supreme court of Florida had previously decided that reasonable attorney’s fees op such a motion are proper elements of damages, and such decisions of the supreme court of Florida were obligatory upon the federal court.” The statute of Florida which required the giving- of the bond on which these actions are based fixes the condition of the bond as follows: “Conditioned to pay all costs and damages which the defendant may sustain in consequence of the plaintiff’s improperly suing out said attachment.” Rev.

St. 1892, § 1646. The plaintiff in the attachments claimed in the aggregate, and in round numbers, the sum of $85,000, and the writs were so levied as, for a time at least, to stop the operations of a sawmill plant with a capacity of about 100,000 feet of sawed timber and lumber per day. The most vital feature of the levy was the placing of it on the accumulation of logs held on hand to meet the daily consumption of the mill. Of the gravest effect, but somewhat less than that of the levy on the logs, was the levy on the stock of sawed timber and lumber manufactured to meet current contracts.

And a very serious effect on the business of the defendant in attachment was the levy of the writs (for so large a claimed indebtedness) on the real estate, including, as it did, the land and fixtures constituting the sawmill plant. The harshness of the use of the extraordinary process of attachment is recognized by the statutes of Florida, which provide that the court to which an attachment is returnable shall always be open for the purpose of hearing and deciding motions to dissolve it. Rev. St. 1892, § 1656.

When an attachment is run on property necessary for the conduct of a going business, which the levy of the attachment for the time being destroys or suspends, or seriously impedes, nothing can be more natural and urgent from, a business point of view than the moving by the defendant in attachment for its dissolution. Such a motion, so urgent and essential, requires for its conduct the services of an attorney of ability and skill, whose reasonable compensation will be proportioned to the interests and questions involved.

There could hardly be a more direct consequence of the levy of such a writ than this, and we concur in the earnest suggestion of the counsel for the plaintiff in error that the reasonable compensation to the attorney for presenting and conducting such a motion is as direct a consequence of the levy of the writ as is the cost of the filing of the motion to dissolve it. It is stated by counsel that the learned judge who presided at the trial announced that the case of Oelrichs v. Spain, 15 Wall. 211, 21 L. Ed. 43, should be followed.

That case has some historic interest on account of the subject-matter of the original bill, and the prominence of several of the actors in the transactions out of which the litigation grew. The immediate case was a suit in equity on a bond or bonds given to procure an injunction which restrained the defendant in the injunction proceedings from drawing money from the federal treasury until the further order of the court.

In the case in which the bonds were given no motion was made to dissolve the injunction, and no professional services were rendered in obtaining its dissolution distinct from the services required in the conduct of the proceedings to the hearing and on the hearing of the bill on the merits. The writ was never dissolved until and except by the final decree. The payees in the bonds were largely successful on the merits.

Counsel for the defendant in error, in his brief, makes this statement: “In fifteen states and the territory of New Mexico attorney’s fees are recoverable on attachment bonds; but in six of those, namely, Louisiana, Kentucky, Ohio, Illinois, Minnesota, and New York, they are not recoverable when the defense of the attachment proceedings involved the merits.

In two of the states mentioned, namely, Washington and Iowa, the recovery of attorney’s fees on attachment bonds is expressly provided for by statute, and the same may be true of some of the others.” Counsel for the plaintiff in error, in his brief, states: “An examination of the text-books and digests of decisions will, we believe, establish that in thirty-eight states of the Union such fees are held a proper element of damages.

In the other states the question is controlled by statute, or by antiquated views of public policy.” The plaintiff in error contends that in this case it is a question of local law; that it arises from the state statute, and could never have arisen if the statute had not required such a bond to be given.

In the matter of injunctions to stay proceedings at law the Florida statute provides that, if the application be to stay the proceedings before verdict or jnquest of damages, the applicant must enter into bond conditioned “to pay to the plaintiff all damages, losses, expenses, and charges which he may have sustained or have been put to by reason of the issuing of the injunction if the injunction shall be dissolved, or the. bill upon which it was granted be dismissed,” or, if tlie application be to stay the proceedings after verdict or inquest of damages, “to pay the debt, interest enjoined, and such damages as may he occasioned by the wrongful issuing, of the injunction if the injunction be dissolved, or the hill upon which it was granted be dismissed.” In Wittich v.

O’Neal, 22 Fla. 592, the condition of the bond sued on was that, if the obligors “shall pay to W. L. Wittich all damages he may sustain by the issuing of the injunction in case the injunction be hereafter dissolved, then this obligation to be void.” On that bond an injunction had been issued in a suit pending at the time of the execution of the bond between the surviving partners of the firm of Keyser, Judah & Oo. and W. L. Wittich.

This injunction was dissolved by the judge of the court on the application of Wittich on the 6th of April, 1881, and a final decree dismissing the bill was rendered on the 9th of April, 1885.

In a suit on the bond given to obtain the temporary injunction, the question arose, and was fully considered, “Are counsel fees, incurred to dissolve the injunction, damages that may he recovered?” On that question the supreme court of Florida said: “If the plaintiff was compelled to employ counsel to dissolve the temporary injunction, it is clear that he was damaged to that extent, and the question above mentioned arises as to whether such damages are recoverable or not.” The opinion then proceeds to cite with emphatic approval the case of Ah Thaie v.

Quan Wan, 3 Cal. 216, in which case the California court cited and followed the decision of Chancellor Walworth in Edwards v. Bodine, 11 Paige, 224, 225. And the Florida court further say that the same principle has been upheld in the following cases: Bank v. Heath, 45 N. H. 524; Collins v. Sinclair, 51 Ill. 328; Behrens v. McKenzie, 23 Iowa, 341; Reece v. Northway, 58 Iowa, 187, 12 N. W. 258; Brown v. Jones, 5 Nev. 374, 377; Livingston v. Exum, 19 S. C. 223, 229; and add, “Many other cases might be cited to the same effect.” After referring to Oelrichs v.

Spain, and quoting extensively the language of the opinion in that case on the subject, the court refers to Oliphint v. Mansfield, 36 Ark. 191, and Wood v. State (a then recent case from the court of appeals of Maryland, announced July 15, 1886), 5 Atl. 476, and say that these cases are based on Oelrichs v. Spain, and contain no argument or reasoning that is not found in that case; and conclude their opinion on this subject in these words: “Against suck an array and weight of authority as sustain the conclusion of the court, as expressed in Ah Thaie v.

Quan Wan, 3 Cal. 216, hi favor of the principle that attorney’s fees aro recoverable in a suit on an injunction bond, we are loath to follow the few authorities that hold the contrary, in the absence of some controlling argument or reason that would convince our judgments of the correctness of these conclusions. The reasons set forth in Oelrichs v. Spain are, to our minds, not satisfactory, and we think are fully answered in the brief of counsel for appellant.” The case of Gonzales v.

Tobacco Co. (Fla.) 26 South. 1012, was a writ of error taken from a judgment of the circuit court of Duval county, Fla,, rendered by a referee in an action at law to recover damages upon an attachment bond executed by Oonzales and two sureties, payable to the tobacco company, conditioned in accordanee with the requirements of the statute, to well and truly pay all costs and damages the defendant may sustain in consequence of improperly suing out a certain attachment against the goods and chattels of defendant in error by Gonzales.

The declaration alleged the giving of the bond; the condition thereof; that the attachment was shown and proven to have been improperly sued out by the result of a trial had May 25, 1892, when Gonzales had to dismiss, and did dismiss, his suit on which the attachment was grafted, and with which it was connected, — a part and parcel thereof; and claimed as damages sustained in consequence of improperly suing out the attachment, among other things, certain sums for attorney’s fees and costs and expenses incurred by defendant in error.

Gonzales filed a plea in offset, alleging that the plaintiff was, before and at the time of the commencement of the suit, indebted to him in the sum of $562, together with interest thereon from June 30, 1891, “as follows,” giving particulars. A demurrer to this plea was sustained.

Other pleas were subsequently filed upon which issue was joined, one of which alleged that the attachment proceeding in which the bond sued upon was given was ancillary to a suit in assumpsit; that no trial was had as to the sufficiency of the attachment proceeding, but that all proceedings, attorney’s fees, costs of court, fees of witnesses, etc., alleged in the declaration were had and incurred in and about the defense of the suit in assumpsit as to which the attachment was ancillary.

The record did not show whether the principal suit was begun by the attachment, or whether the latter was sued out after the institution of the former. The writ was levied upon certain personal property belonging to the defendant in attachment, which remained in the hands of the officer for about 10 months, when, on motion of Gonzales, the plaintiff in the suit, the principal suit was dismissed, at his cost, with an order to the officer to deliver the attached property to the defendant in attachment.

From the evidence it appeared that a motion to dissolve the attachment had been filed, but the grounds of this motion were not stated, nor did it appear that any expenses or attorney’s fees were incurred in relation thereto. It did appear that the attachment was ipso facto dissolved by the dismissal of the principal suit, and that the dismissal of tile latter was a voluntary act upon the part of the plaintiff in the suit.

The referee found that the measure of damages to be recovered by the defendant in attachment was the interest on the value of the goods for the time they were in the custody of the sheriff (the goods not being materially damaged), and costs and expenses, including attorney’s fees, óf procuring a release of the property from the.attachment. Several grounds of error were assigned, but the court did not deem it necessary to pass upon any of them except those relating to the rulings upon the demurrer to the plea of set-off and the motion for a new trial. As to the first it held that the set-off was not well pleaded.

As to the second the court said: “The motion for a new trial ought to have been granted. The only evidence relative to damages claimed on account of costs, expenses, and attorney’s fees was the testimony oí T. F. McGourin, a witness for defendant in error [the tobacco company]. Upon his direct examination ho was ashed if the defendant in error had been to any cost and expense in direct consequence of tiie attachment and seizure of the goods.

He replied ailirmathely, and gave in detail the following items: Attorney’s fees, $S0; six depositions, at $5 each, $30; six witnesses, at $1.25 each, $7.50; Wolfe’s expenses, $22; McCoiirin’s expenses, $44; total, $183.50. On cross-examination this witness stated that the ’attorney's fees were paid in defense of the main ca.se’; that the depositions were taken to cover testimony that was intended to be used at the hearing of the main ease; ‘that the expenses of Mr.

Wolfe were incurred for his presence hero ¡in .lacksonvillei at the time of the main I rial’; that ‘those expenses were incurred at the time that the case was Iried in which Mr. Gonzales was complainant and the He Funiak Tobacco Company was defendant, in which Mi’. Gonzales claimed that an amount was due him on salary.’ In answer to the question, ‘This dismissal of the case was dated'May 25, 1892. Were any of those costs incurred about that timo?’ he said: ‘Yes, sir; I think they were all about that time.

I think they were incurred by reason of that suit.’ Although tills witness stated upon direct examination, in a general way, that these fees and expenses were incurred in direct consequence of the attachment of the goods, his cross-examination explained what he meant by that statement, and developed tiie fact that they wore all incurred in defense of the main suit, and not in any proceeding to test the propriety or procure the dissolution of the attachment, thereby fully establishing the truth of one of the pleas then in issue before the referee.

There was nothing to contradict the testimony of this witness, and consequently no evidence upon which the referee could properly base a finding for these items. As his finding and judgment clearly embraces them, tiie motion for a new trial was well taken. * * * The condition of the bond is to ‘pay all costs and damages the defendant may sustain in consequence of improperly suing out, said aitachment,’ and this language will not admit of damages for expenses of defending the main suit.

By tiie great weight of authority, while attorney’s fees and oilier expenses incurred in relation to the attachment or in relation to procuring its dissolution will be allowed as damages in actions upon attachment bonds, the fees and expenses incurred in defending the principal suit cannot be allowed, in the absence of statute or a stipulation in the bond to that effect. Wittich v. O’Neal, 22 Fla. 592; Drake, Attachm. § 176; Sadler v. Bean, 38 Iowa, 684; Frost v. Jordan, 37 Minn. 544, 36 N. W. 713; Alexander v. Jacoby, 23 Ohio St. 353; Bank v. Wylie, 52 Hun, 146 4 N. Y. Supp. 907; Damron v. Sweetser, 16 Ill.

App. 339. ® * * The judgment is reversed, and a new trial granted.” Referring to this case, the, distinguished counsel for the defendant in error says: “It appears from "the decision that no motion to dissolve the attachment was made, and that it was only dissolved as a result of a judgment for the defendant in the main action, to which the attachment was ancillary, and it was on tliis ground that a right to recover the fees was denied.” After quoting the closing paragraph of the foregoing excerpt from (lie opinion, the able counsel says: “It will he observed that the court viewed the subject of the allowance of attorney’s fees as damages as a question of general jurisprudence, and as one that is to he construed by the rules of decision of the common law; and in this way the case affords light on the subject, and in this way only, for the question now under consideration was not before the court, and what was said on -the subject was merely an expression of opinion as to the weight of authority.” The language just quoted suggests in a delicate and politic way that the question we are considering was not before the court, and that what was said on that subject was mere dictum.

Section 1327 of the Revised Statutes of Florida provides that the judge of the supreme court of this slate delivering the opinion of the court shall prepare and make a syllabus or statement of the points and principles intended to be decided by the court, which shall be filed with the opinion, and published in the Beports at the beginning of the opinion, in lieu of that usually prepared by the reporter. In the report of this case the second paragraph of the syllabus is as follows: “

(2) Attorney’s fees and other expenses incurred in relation to the attachment, or in procuring its dissolution, are properly allowed as elements of damage in an action upon attachment bonds; but fees and expenses incurred in defending the principal suit cannot be allowed, in the absence of statute or a stipulation in the bond to that effect. (Syllabus by the Court.)” We do not overlook the case of Hart v. Stribling, 25 Fla. 435, 6 South. 455, in the report of which we find this in the syllabus: “

(1) Under the statute the judges of the supreme court of this state are required, in deciding cases, to prepare and make- a syllabus of the points and principles intended to be decided by the court, which shall be published in the Reports, in lieu of that usually prepared by the reporter.

But where a judge who writes the opinion of the court expresses a view upon any point or principle which he is not required to decide, his opinion as to such point or principle is obiter dictum, and it is binding on no one.” Perhaps an exhaustive practical judicial definition of the much-used and abused term "dictum” cannot be evolved from reported decisions of approved authority* But, accepting the definition expressed in the quotation just made from the syllabus in Hart v. íátribling as sufficient for our present discussion, we submit that it cannot fairly be contended that the judge who wrote the opinion of the court in Gonzales v.

Tobacco Co., and who, in obedience to the requirement of the statute, prepared the syllabus of the principles intended to be decided by the court in that case, expressed a view upon any point or principle which he was not required to decide. The allegation in the declaration was sufficient to admit proof of fees paid to an attorney for his services in connection with the attachment and its dissolution, as distinguished from his services in connection with' the action of* assumpsit on which the attachment was grafted.

And this allegation is aided by the. plea of the defendant that the attachment was ancillary to a suit in assumpsit) that no trial was had as to the sufficiency of the attachment proceeding) and that all proceedings, costs of court, fees of witnesses, etc., alleged in the declaration, were had and incurred in and about the defense of the suit in assumpsit, to which the attachment was ancillary.

The opinion puts emphasis on the fact that the only evidence relative to damages claimed on account of costs, expenses, and attorney’s fees was the testimony of one witne'ss for the defendant in error; and in another place says: “There was nothing to contradict the testimony of this witness, and, consequently, no evidence upon which the referee could properly base a finding for these items.

It does, however, clearly appear from the testimony of this one witness — and that, too, on his cross-examination — that there was a main trial of the case, and that this main trial took place, or at least terminated, on May 25, 1892, as alleged in the declaration.” It is. also clear, from the opinion, that this issue as to attorney’s fees, being a proper element of damages in the case, was the very one on which the court decided to reverse the judgment and to grant a new trial.- Preparatory to the new trial, the complainant, if he was so advised, could amend his declaration, and on the new trial additional testimony to that of the one witness examined on the first trial might be offered and admitted.

It was, therefore, incumbent on the court to discuss this issue in the manner in which it did, and to announce the proper rule to be applied by the trial court on a second trial of the case. If the language of the opinion and of the syllabus on that subject is dictum, it is dictum of the highest grade, and of a grade so high that the line between it and authoritative decision is too shadowy to be discerned by average judicial acumen. “Attachment is essentially a creature of the written law.

Hence but little assistance can be obtained in discussing this peculiar remedy by looking beyond the statute by which it is authorized. The force and effect of attachment laws can only he tested by the principles of statutory construction.” 1 Wade, Attachm. § 2. “The natural result of the matters thus briefly noticed is to give this remedy a high practical importance, and to lead to a voluminous mass of judicial decisions, extending over a wider surface, and bringing into view a greater variety of legal doctrines than would be conjectured by those who have not examined the subject.

In relation to it there can, in the nature of our institutions, be no uniform system of statute law; but, notwithstanding the inevitable diversity in this particular, there is a general unity of aim and result, so that principles and rules of identical import may be — and in numberless instances are — judicially established under statutes widely differing in details.

Indeed, it may he questioned whether there is any other subject of equal extent in the administration o'f the law depending so entirely upon, and so exclusively regulated by, statutory provisions, that would exhibit less diversity of judicial decision than is connected with this.” Drake, Attachm. (5th Ed.) § 8. “Questions of public policy, as affecting the liability for acts done, or upon contracts made and to be performed, within one of the states of the Union, when not controlled by the constitution, laws, or treaties of the United States, or by the principles of the commercial or mercantile law or of general jurisprudence of national or universal application, are governed by the law of the state as expressed in its own constitution and statutes, or declared by its highest court.” Hartford Fire Ins.

Co. v. Chicago, M. & St. P. Ry. Co., 175 U. S. 100, 20 Sup. Ct. 33, 44 L. Ed. 84. “In its nature this remedy is certainly anomalous. As it exists under the custom of London, it has hardly any feature ‘of a common-law proceeding. * * * In these [just mentioned! and other respects the proceeding under the custom has a,n individuality entirely foreign to the common law. Its peculiar features have, in the main, been preserved in its more enlarged and diversified development in this country.” Drake, Attachm. § 4.

Tt has not been suggested, and cannot well be, that the questions we are discussing are controlled by the constitution, laws, or treaties of the' United Sta tes, or by the principles of the commercial or mercantile law or of general jurisprudence of national or universal application, and hence they are governed by the law of the state as expressed in its own constitution and statutes, or declared by its highest court.

We therefore conclude that the judge of the circuit court erred in refusing to give judgment on that part of the verdict of the jury which reads: “And if the court be of the opinion that, as a matter of law, the plaintiff may recover for such attorney’s fees, we further find for the plaintiff for the amount of $7,500 as a reasonable and just fee for the services proven;” and that the judgment, instead of being for only the sum of $10,805.04, should have been for the sum of $18,395.04; in which respect, and to which extent, we now amend the judgment of the circuit court by striking-out the words “ten thousand eight,” and inserting the words “eighteen thousand three.” These two writs of error were submitted together and argued together before us nearly a year ago (May 29, 1900), since which time we have held them under examination and advisement, and have given the numerous assignments of error careful and diligent consideration.

WTe find that the action of the learned judge who presided at the trial in the circuit court is in sevefal particulars subject to the criticism which is leveled at it by some of the other numerous assignments of error made by the plaintiffs in error on their respective writs; . but, on the fullest consideration of the whole case, we conclude that the record presents no error on the part of the trial judge for which the judgment should be reversed, except the error that we have discussed, and its nature is such that we can and do correct it by amending the judgment as above indicated; and, thus disposing of both writs of error, the judgment of the circuit court is affirmed.