70 Ind. App. 1 | Ind. Ct. App. | 1919
This is an action by the State of Indiana, on the relation of Hyman Friedman, to recover against Ben Freiberg and The National Surety ■Company of New York City, New York, upon their bond, the sum of $100 charges for attorney’s fees in defending a cause of action instituted by Ben Freiberg, one of the appellees, to suspend or revoke a liquor license held by the relator, Hyman Friedman.
The complaint alleges that the appellee Ben Freiberg filed his complaint for the revocation of a retail liquor license held by the relator; that he gave a bond, as required by §8323y Burns 1914, Acts 1911 p. 244, §20, with the appellee surety company as surety, and conditioned that the appellees “shall pay all costs and charges incurred by the said Hyman Friedman if such license be not suspended or revoked”; that said cause was tried, and a judgment rendered in favor of the relator, and that his license was not suspended or revoked; that relator was compelled to, and did, incur a charge of $100 for attorney’s fees in defending said action. The appellees filed separate demurrers to the complaint, which were sustained. Relator excepted and, refusing to plead further, judgment was rendered against him that he take nothing.
This court judicially knows that the clerk of the Marion Circuit Court is ex officio clerk of the Superior Court of Marion county. The certificate is signed by the person who was in fact clerk of the Marion Circuit Court, and is witnessed by the seal of the circuit court. This is sufficient.
The only question involved in this appeal is, Do the words “costs and charges incurred” in the bond include attorney’s fees incurred in defending the action for the revocation of the liquor license held by the relator?
It has been the policy of the courts from the earliest times to allow only such costs and charges as are properly taxable as costs.
The construction which the courts have given such .phrases as “costs ánd charges” included only such charges as the court had jurisdiction to adjudicate and to enforce by the necessary order for their payment. Had it been the intention of the legislature to include attorney fees, they would doubtless have said so, as they did when it was proyided that attorney fees should be included as a part of the expense in partition suits. §1265 Burns 1914, Acts 1893 p. 315.
The court committed no error in sustaining the demurrer to the complaint.
Judgment affirmed.