CITY BANK AND TRUST COMPANY v KWASKE BROTHERS CONSTRUCTION COMPANY
Docket No. 30246
Michigan Court of Appeals
September 7, 1977
78 Mich App 158
Submitted May 10, 1977, at Lansing.
1. GARNISHMENT—COSTS—SUMMARY JUDGMENT—COURT RULES.
The court rule pertaining to costs in a garnishment proceeding controls over other subsections of the same general court rule whenevеr a garnishment action is involved; where a garnishment action ends in summary judgment the more specific rule pertaining to costs in a garnishment procеeding controls and the subsection covering costs in summary judgments is inapplicable (
2. GARNISHMENT—ATTORNEY FEES—GARNISHMENT EXPENSES—COURT RULES.
A judge in garnishment proceedings, where the issue of the garnishee’s liability to the principal defendant is not brought to trial, may award the garnishee as costs against the plaintiff such reasonable attorney’s fees аs the garnishee incurred in filing his disclosure and other necessary expenses; this rule does not limit attorney fees to those incurred in filing the disclosure, but pеrmits these fees as well as other necessary expenses incurred by attorney and client alike (
Dissent by M. J. KELLY, P. J.
3. GARNISHMENT—ATTORNEY FEES—EXPRESS AUTHORIZATION—LIMITATION OF FEES—COURT RULES.
Attorney fees are not generally recоverable unless expressly authorized by statute or court rule, and where a court rule departs from the usual catchall phrase of “including reаsonable attorney fees” and speaks instead of fees actually incurred in filing a disclosure in a garnishment action, the court contemplаted less than all reasonable attorney fees and limited the
4. COURTS—COURT RULES—INTERPRETATION—CONSTRUCTION.
Court rules must be read according to the plain language of the rule, giving effect to the meaning of the words as they ought to have been understood by those whо adopted them; a court rule should be interpreted so that every word, phrase, clause, and sentence of the provision to be cоnstrued must be given force and effect and no word, phrase, or clause should be rendered nugatory.
5. GARNISHMENT—COSTS—ATTORNEY FEES—GARNISHMENT EXPENSES—OTHER NECESSARY EXPENSES—COURT RULES.
The court rule governing garnishment costs states, “suсh reasonable attorney fees as the garnishee incurred in filing his disclosure and other necessary expenses“, the phrase “other necessary expenses” refers to the expenses of the garnishee and should not be interpreted as expanding attorney fees recoverable beyond the fees incurred in filing the disclosure (
REFERENCES FOR POINTS IN HEADNOTES
[1-5] 6 Am Jur 2d, Attachment and Garnishment § 407.
20 Am Jur 2d, Courts §§ 82-86.
Appeal from Jackson, Charles Falahee, J. Submitted May 10, 1977, at Lansing. (Docket No. 30246.) Decided September 7, 1977. In lieu of leave to appeal, reversed and remanded to the circuit court, 402 Mich —.
Complaint by City Bank and Trust Company against Kwaske Brothers Cоnstruction Company, Gerald Kwaske, Kathleen Kwaske, Eugene Kwaske, Jane Kwaske, and Ernest L. Kwaske for repayment of money loaned. Summary judgment fоr plaintiff. A writ of garnishment was served by plaintiff against Brooks Abstract Company seeking funds allegedly held for defendants. Capital Savings & Loan Association, Lаwyers Title Insurance Company and Honey Brook Company were added as necessary parties. Writ dismissed. Plaintiff appeals. Affirmed, 69 Mich App 271. Order issued allowing Brooks Abstract Company costs and attorney fees. City Bank and Trust Company appeals this order. Affirmed.
Cummins & Cummins, for Brooks Abstract Company.
Before: M. J. KELLY, P. J., and ALLEN and D. E. HOLBROOK, JR., JJ.
D. E. HOLBROOK, JR., J. City Bank and Trust Company aрpeals an order of the lower court allowing costs and attorney’s fees of $3,731.20 in favor of Brooks Abstract Company. A detailed recounting оf the facts in this case appears in City Bank & Trust Co v Kwaske Brothers Construction Co, 69 Mich App 271; 244 NW2d 443 (1976). Suffice it to say for purposes of this case that the garnishee defendant, Brooks Abstract Company, prevailed via summary judgment in the lower court to the effect that there was a finding of no liability to the principal defendant.
The taxation of costs from the garnishment proceedings is the issue to which we address ourselves. In doing so, we affirm the result reached by the lower court.
The applicable court rule,
Within 526.9(1) plaintiff argues that attorney’s fees should be limited to those incurred in filing the disclosure.1 Instead we understand the court rule as permitting thosе fees as well as other necessary expenses incurred by attorney and client alike.
Affirmed.
ALLEN, J., concurred.
C B & T v KWASKE BROS
Docket No. 30246
Michigan Court of Appeals
September 7, 1977
78 Mich App 158
Dissent by M. J. KELLY, P. J.
M. J. KELLY, P. J. (dissenting). I dissent.
As a general rule attorneys’ fees are not awаrded “unless allowance of a fee is expressly authorized by statute or court rule“. State Farm Mutual Automobile Insurance Co v Allen, 50 Mich App 71; 212 NW2d 821 (1973). In the instant case we have a court rule which provides expressly for an allowance of attorney fees;
“The judge in awarding costs may (1) in case the issue of the garnishee’s liability to the principal defendant is not brought to trial, award the garnishee as costs against the plaintiff such reasonable attorney’s fees as the garnishee incurred in filing his disclоsure and other necessary expenses.”
Instead of a catchall phrase such as “including reasonable attorney fees” which is used in most оf
Attorney fees are not generally recoverable unless expressly authorized by statute or court rule. The phrase, “other necessary expenses“, refers to expenses of the garnishee and should not be interpreted as expanding on the attorney fees recoverable.
I would reverse and remand for the trial court to tax only those attorney’s fees incurred in filing the disclosure, and it would appear that such fees would encompass only the first two and one-half lines of exhibit B, the attorney fee statement attached to appellant’s brief: “Receipt of writ of