State v. East Joplin Lumber Co.

Smith, P. J.

This case shortly stated is about this:

Statement The defendant, the East Joplin Lumber Company, sued one Randall by attachment. Under the writ certain personal property of the relator was levied on as that of Randall and for which the relator successfully interpleaded in the attachment suit. The relator brought this action on the attachment bond of the East Joplin Lumber Company, the plaintiff in the attachment, to recover by way of damages the amount laid out and expended by him as fees for attorneys employed by him in prosecuting his interplea in the attachment. The uncontradicted evidence showed that he paid the two legal firms retained by him in the prosecution of the claim to the attached property interposed by him in the attachment the sum *666 of $150, and that that amount was reasonable. The court refused to declare by an instruction requested by relator that “in assessing the damages the court should allow him and he is entitled to recover, such sum, if any, as the court may find he paid out for reasonable attorneys’ fees for services rendered by his attorneys in filing and prosecuting his interplea” for the property attached. And this action of the court is assigned by the relator as error. The attachment bond was in the statutory form and bound the defendant and his sureties, the obligors therein, “to pay all damages and costs that may accrue to any defendant, garnishee or interpleader by reason of the attachment, or any process or proceeding in the suit, or by reason of any judgment or process thereon.”- R. S., section 588.

Abond;i indemnity auorne’/’^feesl* The attachment bond provided by the attachment law contained in the Revised Statutes of 1879, section 404, was intended as an indemnity only to the defendant in the attachment but in the revision of 1889, section 527, the bond was made to stand as indemnity to any interpleader or garnishee as well as to any defendant so that the obligors in an attachment bond under the present statute are bound to pay all damages and costs that may accrue to any interpleader by reason of the attachment or any process or proceeding in the attachment suit. Under the attachment law as it stood prior to the adoption of the present revision the defendant in the attachment if successful was entitled to recover in an action on the attachment bond as part of his damages a reasonable attorney’s fee. Hayden v. Sample, 10 Mo. 215 ; State to use v. Thomas, 19 Mo. 613 ; State to use v. Beldsmeier, 56 Mo. 226 ; Kelly v. Beauchamp, 59 Mo. 178 ; State ex rel. v. Shobe, 23 Mo. App. 474 ; State to use v. McKeon, 25 Mo. App. 667 ; State ex rel. v. Gage, 52 Mo. App. 464 .

*667 And under the present revision it has been decided by us that a garnishee who succeeds in defeating a garnishment in an attachment suit may recover on the attachment bond the attorney’s fee which he has been obliged to pay in defending the garnishment. State v. Immer, 52 Mo. 536 . And as an interpleader in an attachment suit is no longer a stranger to the bond therein but by the force of the existing statute is entitled to the same recourse on the bond, or which is the same thing, to the same indemnity provided by the bond as a defendant or garnishee in the attachment suit, there ought not, in view of the adjudications to which reference has been made, to be any sort of doubt that the relator was entitled in the present action to recover as part of the damages sustained by him in the attachment his reasonable attorney fees.

The levy of the attachment on the property of the relator was the direct and proximate cause of the damages for which the suit is brought. Had there been no seizure and detention of relator’s property under the writ of attachment there would have been no occasion for him to have gone to the expense of employing attorneys to interplead and claim it in the attachment suit. No good reason has or can be suggested why an interpleader in the attachment is not as much entitled to the benefit of the indemnity bond provided by the statute as any defendant or garnishee. This is made plain from the very terms employed in the statute itself. None of the authorities to which defendants in their brief call our attention have any application to a case like the present. The tidal court erred in refusing the relator’s instruction which has been already quoted.

The judgment accordingly will be reversed and cause remanded.

All concur.