256 P. 584 | Cal. Ct. App. | 1927
This is an appeal from a judgment rendered in favor of defendants in an action on a bond for damages arising out of the alleged wrongful appointment of a receiver in a former action between the same parties — the position of the parties therein being reversed; that is to say, the plaintiff herein was the defendant in the former action and the plaintiff in that action is the defendant in this action.
The specific damages claimed by plaintiff herein were for attorney's fees in the sum of $1,300, alleged to have been *246 paid by him to counsel representing him in the action in which the receiver was appointed.
On the trial of the present action, among other things, the court found:
"That the said Manuel Gonsalves did not procure the appointment of said receiver wrongfully, maliciously and without sufficient cause.
"That said John August has paid to his attorneys as aforesaid the sum of $1300, but that said sum was not paid for the purpose of procuring a dissolution of the receivership in said action No. 4771. That said sum of $1300 was not and is not a reasonable sum for attorney's fees in said action for obtaining the discharge of said receivership. That the sum of $1300 was a gross sum charged by said attorneys in connection with said action No. 4771, and that no separate charge was made by said attorneys for any work in connection with the receivership."
[1] The record herein shows that on the day on which the receivership action was commenced the defendant employed attorneys to represent him generally therein, and that no receiver was appointed in such action until one week thereafter. In the case of Lambert v. Haskell,
See, also, Curtiss v. Bachman,
Moreover, the appointment of a receiver was incidental only to the main question in the action in which the receiver was appointed. No question having been raised by appellant regarding the sufficiency of the evidence to support the findings, it conclusively appears that the attorney's fees charged the defendant in the action covered the entire case, and that there was no segregation in the charge of the attorneys showing what sum was charged in connection with that part of the action which dealt exclusively with the question of the validity of such appointment — which question was tested in the court below by a motion to vacate the order appointing the receiver, but which motion was denied. *247
While the attention of this court has been directed to no California case involving the question of whether bondsmen are liable for general attorney's fees paid or incurred by the defendant in defense of an action where a part of the relief sought by the plaintiff was by and through the appointment of a receiver, authorities are not lacking which in principle clearly indicate that attorney's fees paid generally in defense of a suit in which a receiver is appointed are not recoverable; but that such fees only (if any) are recoverable as were paid or incurred for the purpose of obtaining the discharge of the receiver.
As showing the similarity of the basis for an action on a bond given on the appointment of a receiver and an action founded on an undertaking given on the issuance of an injunction, it may be noted that section 566 of the Code of Civil Procedure lays a foundation for the recovery of damages where a receiver is appointed "wrongfully, maliciously or without sufficient cause"; and that by section
In the case of Bustamente v. Stewart,
In the case of Curtiss v. Bachman,
Referring again to Lambert v. Haskell,
The syllabus in the case of Mitchell v. Hawley,
To the same effect, see the following cases: San Diego WaterCo. v. Pacific Coast Steamship Co.,
As hereinbefore stated, by the findings of the trial court it conclusively appearing that the attorney's fees in the action for the appointment of a receiver were for the entire services rendered by the attorneys therein, and that no separate charge was made by the attorneys for their services in connection with their efforts to have vacated the order appointing the receiver, it follows that the action could not be maintained and consequently that the judgment should be affirmed. It is so ordered.
Conrey, P.J., and York, J., concurred. *249