268 Mo. 420 | Mo. | 1916
— This is an action to recover the expenses of litigation, including attorneys’ fees, alleged to have been incurred by the plaintiff in a former proceeding against the defendant to set aside a deed for fraud, and for an accounting. • In the latter action, brought, as was the one at bar, in the circuit court of Jasper County, plaintiff had judgment, and upon an appeal to this court the same was affirmed except as to a correction in the allowance of interest. [240 Mo. 552.]
Defendant demurred to the petition filed in the suit at bar and from the judgment sustaining this de'inurrer plaintiff appeals. The amount sued for fixes the jurisdiction of this court.
The grounds on which the sufficiency of the petition was challenged were: (1) that the damages sued for, to-wit, the expenses in preparing for trial and attorneys’ fees, were not recoverable in an action of this nature; and (2) if recoverable they should have been included in the original suit.
“The obligation to pay the attorneys’ fee in the case did not arise out of the fact that, the ward was successful in his suit against his curator, but the liability was determined by the terms of the curator’s bond, which, it was properly held, stood good as an indemnity against all the natural and proximate consequences of a breach of the duty which the curator owed the ward.”
In the Albers case the plaintiff was attempting to recover attorney’s fees alleged to have been paid by him in resisting the effort of the Merchants ’ Exchange to remove him therefrom as a member. The conclusion of the court in that case was that costs of the character there sued for could not be classified as damages and were therefore not recoverable. The court in so ruling declares that “the law of this State, in .denying a party the fight to recover from his adversary the expenses of litigation other than statutory taxable costs is in harmony with the law of our sister states.”
In the discussion of this case Judge Gantt, speaking for the court, says arguendo:
‘ ‘ Did the circuit court err in holding that plaintiff was not entitled to recover back this fee because there was no evidence that the directors were actuated by malice in suspending plaintiff from membership, and*425 that, in the absence of malice, the attorney’s fee could not form an element of his damages?”
This language, as was said in Winstead v. Hulme, 32 Kan. 568, might seem to imply that if it had been shown that malice or oppression had mingled in the controversy, then such costs as • are under consideration might be recovered. It is evident, however, from the entire opinion that what the court meant was that if the evidence disclosed that the original action was prompted by malice or oppression punitive damages might be recovered and that the amount shown to have been expended by the prevailing party in the litigation could be taken into consideration in fixing the whole amount of the judgment. The court’s language sustains our conclusion. We have reference to its declaration “that in the absence of malice attorney’s fees will not form an element of plaintiff’s damages.” Why an element if it constitutes the basis of the plaintiff’s right of action? But it does not, and being only an element thereof it may- simply be taken into account in the presence of malice, in determining the total amount of plaintiff’s damages in the event of his recovery. Construed otherwise the conclusion reached in the Albers case would not be consonant, as the court declares it- to be, with the strong current of authority elsewhere.-
The rule announced in the Albers case has been affirmed in principle in Pickel v. Pickel, 243 Mo. l. c. 665, the court holding that a fee would not be allowed to plaintiff’s attorney as a part of the decree in a suit to set aside a fraudulent transfer of corporate stock. And in Johnson v. United Railways, 247 Mo. l. c. 348, involving the liability of a corporation for rights of action existing against another corporation which had transferred its franchise and assets to the former, the court held that a claim for attorneys’ fees for prosecuting to final judgments this class of claims against the transferee company would not be allowed,
Courts of last resort in many other jurisdictions are not less emphatic in declaring the existence of the rule. In fact many of them not only hold that expenses of litigation, including attorneys’ fees, will not be recognized as forming the bases of independent actions, but that they will not be allowed in the principal suit as an element of damages even where punitive or exemplary damages are allowable. Nor is it material as to the character of the action, whether it be ex contractu or ex delicto; the application of the rule is the same and nothing except costs ordinarily taxable can be allowed or recovered. [Day v. Wood-worth, 54 U. S. 363; Railroad v. Citizens Traction and Power Co., 16 N. M. 163; Earl v. Tupper, 45 Vt. 275; Fairbanks v. Witter, 18 Wis. 287; Winkler v. Roeder, 23 Neb. 706, 8 Am. St. Rep. 155; Bull v. Keenan, 100 Iowa, 144; Landa v. Obert, 45 Tex. 539; Evans v. Ins. Co., 87 Kan. 641, 41 L. R. A. (N. S.) 1130.]
Plaintiff’s claim as asserted here, if recoverable, belonged to and arose out of her original cause of action, and by a reasonable exercise of her rights it could have been made a part of same. This not having been done the rule of. res ad judicata will apply with as much force as if the matters now sought to be adjudicated had been put in issue. [Summet v. Realty & Brokerage Co., 208 Mo. l. c. 511; Cook v. Globe Ptg. Co., 227 Mo. l. c. 524.]
In Van Horne v. Treadwell, 164 Cal. 620, the plaintiff had instituted a former suit to recover pledged stock claimed to have been fraudulently appropriated by the defendant, and obtained a decree. He afterwards instituted a separate suit for expenses and attorneys ’ fees incurred in the former proceeding. The Supreme Court of California denied him the right to maintain the second suit on the ground that it was res adjudicata, holding that the plaintiff could not split his demand for relief so as to entitle him to recover a part of same in one action and the remainder in another; that the demand for the repayment of the expenses of the suit, including attorneys’ fees, if a proper element of damages at all, was such as flowed from the single wrongful act of withholding the delivery of the stock.
In Abbott v. The 76 L. & W. Co., 161 Cal. 42, it was sought to recover damages plaintiff claimed to have sustained by reason of a former suit. The court denied the plaintiff the right to maintain the second suit saying, in- effect, that under elementary principles he was bound to obtain all his relief in one action and could not recover part in one and part in another. Resorting as he did to an action in equity, the court had power to give him all the relief he was entitled to, and his subsequent action on the same contract was
Except to show that the doctrine of res adjudicata is everywhere uniformly applied, the citation of authorities from other jurisdictions would have been unnecessary, because its application here has been settled beyond question, if not before, certainly in the cases of Spratt v. Early, 199 Mo. 491; Summet v. R. & B. Co. and St. Louis v. United Railways Co., supra; in each of which it is emphatically held that all of the issues which might have been raised and determined in a given ease, but were not, are as completely barred as if they had been adjudicated and included in the verdict.
Plaintiff’s petition showed on its face that she was not entitled to recover. The demurrer was therefore properly sustained, which results in an affirmance of the judgment. It is so ordered.
