111 P.2d 612 | Wash. | 1941
About four months prior to the completion of the work under the contract, Walter R. Warren filed with the city of Bremerton a claim, in December, 1937, for damages in the amount of four thousand five hundred dollars for alleged removal of lateral support to his land through the contractor's operations. Without notification to the contractor of the claim, the city rejected the claim.
Two months later, Walter R. Warren instituted an action upon the claim, naming as defendants the city of Bremerton, contractor Macri, and the contractor's surety. Although regularly served with process, the city did not appear; however, as disclosed by the statement of the trial court as dictated into the record, "the city attorney knew the suit was brought and wilfully refrained from defending." Macri and his surety duly appeared by motion and demurrer. Without joining final issue with the contractor and his surety, Warren obtained the entry of default against the city. Thereafter the court made findings as to the extent of damage to Warren's land and entered judgment against *95 the city, solely, in the amount of twelve hundred dollars, which judgment was taken without knowledge of Macri and his surety. Warren satisfied the judgment of record pursuant to the procedure prescribed by Rem. Rev. Stat., § 953 [P.C. § 8396], and demanded a warrant from the city in payment of that judgment.
The then city attorney of Bremerton, who is responsible for the city's wilful default, allowed entry and satisfaction of record of the default judgment, rejected certified copy of such judgment satisfaction as a claim, and appeared in, but did not resist, entry of decree in mandamus proceedings instituted June 22, 1938, by Warren to compel the city of Bremerton to issue to him a warrant in payment of his judgment. Macri and his surety had no notice of that proceeding.
The city then notified Macri and his surety of the mandate judgment and demanded that they pay same. Macri and his surety, after serving notice upon Warren, procured two orders, in the action instituted by Warren upon his claim, dismissing the action against them. The city was notified through its then city attorney that Macri and his surety would not pay the mandate judgment, and that they would hold the city responsible for any payment thereof from Macri's retained percentage of the contract price for the sewer construction. Despite that notice, the city paid Warren out of that retained percentage the amount of the mandate judgment.
August 29, 1938, Macri instituted an action in mandamus to compel the city and its officers to accept full performance of the work under the contract, to certify such acceptance, and to issue to contractor Macri a city warrant in the amount of $6,064.67 in full payment of the work. The city pleaded as a partial defense its payment of the judgment in the Warren damage action. Trial to the court resulted in entry *96 of a decree awarding Macri the total amount of the retained percentage in the amount of $6,058.10 "less any claims filed as provided for by law." The city did not appeal from that decree, nor did it formally accept Macri's work or pay to him the amount of the retained percentage as fixed by the decree. It submitted, instead, to Macri, and insisted upon his acceptance of, two claims designated "purchase requisitions," the effect of which was to deduct from the retained percentage amounts representing the Warren judgment and also two other damage claims which were subsequently disallowed.
Macri thereupon instituted contempt proceeding to compel obedience by the city and its officers to the decree and peremptory writ of mandate. The defense pleaded in the contempt proceeding was payment by the city of the judgment in the Warren action. The trial court held that the Warren judgment was a proper deductible item, on the theory that it had been concluded by the Warren litigation. Macri appealed from that judgment.
We held (State ex rel. Macri v. Bremerton,
Pursuant to the foregoing, a further hearing was had which resulted in findings that Macri was entitled to judgment against the city of Bremerton in the amount of $6,058.10, with costs which included the statutory attorney's fee of ten dollars. The trial court specifically found that Macri had been compelled to secure, and there had been furnished him, very considerable legal services in this litigation, and that such services were to an unusual extent required by the conduct of the city officers; and that the reasonable value of such legal services as sustained by the uncontroverted evidence is fifteen per cent of the total amount to be recovered by Macri in this litigation. However, the trial court was convinced that an attorney's fee in excess of the amount fixed by statute was not recoverable. Judgment was entered in consonance with the foregoing. The city's tender of cash payment of the judgment, including the statutory attorney's fee of ten dollars, was accepted with the exception of the item of ten dollars. The appeal is prosecuted by Macri from that portion of the judgment which awards to him only the statutory attorney's fee of ten dollars.
The sole question presented by this appeal is whether, by reason of the fact that the city was adjudged to have wrongfully paid from and withheld the balance of appellant contractor's retained percentage earned under the public works contract in question, the contractor was entitled to recovery against the city, as costs or damages, an attorney's fee in excess of the amount fixed by statute (Rem. Rev. Stat., § 481 [P.C. § 7462]), in action against the city to collect the retained percentage. *98
Counsel for appellant contend that retained percentage funds, held by virtue of the public improvements contract statute (Rem. Rev. Stat., § 10320 [P.C. § 9727-1]), are trust funds and cites, as sustaining authority for the position that the trial court should have allowed a reasonable attorney's fee to appellant contractor against respondent city, Longview School Dist. No.112 v. Stubbs Electric Co.,
". . . involved an indemnitor's rights under subrogation of the surety's claim to protection because of the school district's premature payment to its contractor Hammond from the retained percentage fund."
In Longview School Dist. No. 112 v. Stubbs Electric Co.,
In accordance with the indemnity agreement, Stubbs Electric Company satisfied that judgment, in addition to which the electric company paid attorneys' fees and costs of one hundred and fifty-three dollars incurred by the surety in defending the action brought against it by the time recording company. The trial court held that the electric company was entitled to be subrogated to the rights of the surety company, as against the school district, and awarded judgment against the school district for $801.20, from which judgment the school district appealed.
Two questions were presented to this court: First, did the doctrine of subrogation apply? We answered that question in the affirmative. The second question was whether the school district was liable for the attorneys' fees and costs amounting to $306.20. It will be remembered that the attorneys' fees were one hundred and twenty dollars awarded the plaintiff in its judgment against the surety and "attorneys' fees and costs of $153" incurred by the surety in defending the action brought against it by the Time Recording Company. The school district insisted on appeal that Stubbs Electric Company was not entitled to recover in excess of four hundred and ninety-five dollars, the amount which the school district was required to retain for a thirty-day period after acceptance of the work by the architect and which the school district paid to Hammond before the expiration of the thirty-day period; that the electric company was not entitled to recovery of attorneys' fees and costs amounting to $306.20. No point was made that attorneys' fees recoverable by a successful litigant were limited by the statute. Counsel for respondent argued that the electric company, as an indemnitor of the surety, who paid a judgment against *100
the surety, was subrogated to all of the rights of the surety; and that, as the natural and proximate consequence of appellant's wrongful act involved the electric company in litigation with others, the electric company was entitled to a recovery in damages against the school district, the author of the act, of the reasonable expenses incurred in such litigation together with compensation for attorneys' fees and such costs as may have been awarded the plaintiff, the Stubbs Electric Company in that case. 17 C.J. 809, and Curtley v. Security Savings Society,
The doctrine of subrogation was involved in Longview SchoolDist. No. 112 v. Stubbs Electric Co., supra, and the basis of our decision, that the respondent was entitled to an allowance of attorneys' fees and other expenses as damages incurred in collateral proceedings as the natural and proximate consequence of the admittedly wrongful act of the school district, distinguishes that case on the facts from the case at bar. As stated above, no argument was made, nor was the question discussed in brief or opinion, whether attorneys' fees, apart from the amount allowed and taxed as costs pursuant to statutory authority therefor, could be recovered as damages or as costs. In the case at bar, the action is between the two litigants, and there has not been at any time an action against a third party for which appellant could successfully claim an attorney's fee as part of his damage.
In Curtley v. Security Savings Society,
The rule governing the allowance of costs in civil actions has been settled so long that an extensive discussion at this time of the subject would not be warranted, if it were not for the reliance of counsel for appellant on Longview School Dist. No.112 v. Stubbs Electric Co.,
[1] This proceeding — the case at bar — for a writ of mandate is but another form of civil action. State ex rel. LaFollette v.Hinkle,
[2] Apart from the sums allowable and taxed as costs, there can, as a general rule, be no recovery as damages of the costs and expenses of litigation. If recovery is sought by appellant of attorneys' fees in excess of the statutory allowance thereof as "damages," it should be borne in mind that the term "damages" is in its legal sense defined as meaning the compensation which the law will award for an injury done. 17 C.J. 807. In its early signification, the term was held to include costs, but the terms are now regarded as *102 distinct and costs are awarded as damages only where the circumstances of the particular case withdraw it from the general rule. 17 C.J. 710.
[3] The term "costs" may be considered as synonymous with the term "expense." Costs are allowances to a party for the expense incurred in prosecuting or defending a suit. 15 C.J. 20. The word "costs" in the absence of statute or agreement does not include counsel fees; in other words, the general rule is that counsel fees are not costs either in suits in equity or actions at law.
"The amount and items recoverable as attorneys' fees must of course depend on the statutes or stipulations of the parties authorizing their allowance. Although there is some authority to the contrary, if a specific amount is prescribed by statute, the court cannot allow a greater sum." 15 C.J. 117.
[4] This action is governed by the rule which applies in all ordinary civil actions; that is, the successful litigant may recover only such attorney fees as the statute or agreement of the parties provides shall be taxed as costs in the action.Easterbrooks v. Abrahams,
In Enbody v. Hartford Accident Indemnity Co.,
"The statute (Rem. Comp. Stat., § 481) [P.C. § 7462] allows, in all cases, to the prevailing party certain specified sums called attorney's fees to be taxed as costs, and in certain other instances it provides specially for the recovery of attorney's fees expended in a former action to be recovered in another (see Rem. Comp Stat., § 654) [P.C. § 7386]. But the general rule, in the absence of statute, is not to allow such a recovery. Lovellv. House of the Good Shepherd,
In State ex rel. Maltbie v. Will,
"The appellant insists that he is entitled to recover $200 attorney's fees from Douglas county, as his damages incurred by reason of the refusal of the county officers to allow and pay his claim. This contention cannot be sustained. The statute of this state fixes the attorney's fees that may be allowed to a successful litigant as costs in civil actions, and no additional fees for their prosecution should be allowed without statutory authority."
Equity may allow counsel fees to complainant who has maintained a successful suit for preservation, protection, or creation of common fund or who has created or brought into court such fund. The rule, however, allowing complainant counsel fees for creating or preserving common fund is not applicable to the facts in the case at bar.
Sprague v. Ticonic Nat. Bank,
In Houston Oil Terminal Co. v. Shreveport,
In Jenkins v. Commercial Nat. Bank of St. Anthony,
In Guay v. Brotherhood Building Ass'n,
"The second exception is to the refusal of the master to allow as damages the counsel fees incurred by the defendants in maintaining their rights against the premature foreclosure by the plaintiff's testatrix. It *105
is not enough to say that the foreclosure is wrongful, illegal, or tortious. Ordinarily one suffering from such a wrong cannot recover the counsel fees incurred in resistance of it, but will be limited to the attorney fee allowed by statute to be taxed as costs. The case of Chartier v. Marshall,
"Counsel fees other than statutory costs have been allowed under certain classifications. They include (1) cases of enforcement of judicial authority, as where misconduct of a party amounting to contempt of court has caused the opposing party to incur counsel fees (Barber v. Company,
"(2) Counsel fees other than those permitted by statute may be allowed by the court as the price of terms. Thus they may be taxed against the applicant for a new trial in some cases as terms for the granting of the motion. Watkins v. Railroad,
"(3) Counsel fees may be allowed as damages in cases where there is contractual liability. Such liability may exist where the contract is to be interpreted as expressly providing for their payment, as in injunction bonds (Derry Bank v. Heath,
"(4) Counsel fees other than statutory costs may also be allowed to a stakeholder out of the res, as (a) in the case of a trustee's petition for instructions (Rollins v. Rice, supra), (b) in petitions for partition and (c) in bills of interpleader, where the stakeholder may have costs attendant upon his bringing the fund and the question of the rights of adverse claimants into the court for adjudication (Farley v. Blood,
"(5) In domestic relations cases the court has some discretionary powers relative to allowing substantial counsel fees. In divorce proceedings the power is limited. The court (a) may allow a wife who is libelee a reasonable sum to prosecute her defence when she appears to have a good defence and is without property, (b) denies such fees to a wife who is libelant pending the proceedings, but (c) may take the expenses of her suit into account, if she is given a divorce, in the award of alimony.Wallace v. Wallace,
"The case here falls into none of these classes, and if the foregoing analysis is not exhaustive, the counsel fees to which these defendants are entitled seem clearly subject to the statutory regulation and not distinct therefrom upon any principle heretofore recognized. The master's ruling was correct."
In State ex rel. Risch v. Trustees,
In a concurring opinion in State v. Pearl,
Attention was directed to Harrigan v. Gilchrist,
"The burdens which the Magna Carta provision was designed to lift and secure immunity from, bear no resemblance whatever to those legitimate expenses of litigation which we call costs, or security for the payment thereof, to the prevailing party. They were those exactions, common once, when standards of official conduct, as regards judicial administration, were so incomparably lower than in modern times that we can hardly appreciate how they could ever have been deemed justifiable, as they doubtless were. They were bribes, so to speak, demanded and received by officers exercising judicial power in the king's courts, in the nature of consideration for the use of judicial machinery. In effect, justice was to some extent a matter of bargain and sale. The exactions were not to pay for any legitimate expense, but went to enrich the judicial head, or some one acting thereunder and by his authority. Strange as it may seem, that practice was not deemed to involve any moral turpitude. It was supposed to be to such a degree attributable to sovereign prerogative that the uprooting thereof was accomplished only by a formal relinquishment by the sovereign and a grant to the people, the form thereof being this: `We will not sell the right and justice to any one, nor will we refuse it, or put it off.' Sir Edward Coke's explanation of the scope of that pledge would seem to have given rise to the phrasing of the idea as we now find it in our own and other constitutions:
"`The king, in the judgment of the law, is ever present and repeating in all his courts, "Nulli vendemus, nulli negabimus,aut differemus rectum vel justitiam" (We neither sell nor deny, nor delay, to any person, equity or justice), and therefore every subject, for injury done him "in bonis, in terris, vel persona" (in person, goods, or body) by any other subject, be he ecclesiastical or temporal, without any exceptions, may take his remedy by the course of the law and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay.' *109
"In construing any provision of the bill of rights taken from the English Charter, it must not be forgotten that no new restriction was intended thereby, but that the sole purpose thereof was to preserve those valuable safeguards against excessive use of sovereign authority that had become a distinguishing characteristic of English liberty. That idea cannot be found better stated than by COOLEY, J., in Weimer v.Bunbury,
"`The truth is, the bills of rights in the American constitutions have not been drafted for the introduction of new law, but to secure old principles against abrogation or violation. They are conservatory instruments rather than reformatory; and they assume that the existing principles of the common law are ample for the protection of individual rights, when once incorporated in the fundamental law, and thus secured against violation.'
"It is suggested, as conclusive evidence that the right to use judicial remedies under the common-law system was free and that the provision of our bill of rights referred to was designed to prevent conditions thereof being created here, that appeals in England were always allowed, even to the House of Lords, without any burdens being imposed on the appellant. A more careful examination of the subject would have shown that the right to impose reasonable conditions as to costs and security for costs was never questioned in the English courts. Special favors, it is true, were granted to persons in need thereof, to sue in formapauperis, upon proof being made that otherwise justice would be denied (1 Dan. Ch. Pr. [6th Am. ed] 38, 155); but generally, costs and security for costs, in some form, in personal actions, were exacted, after the days of Magna Carta. At first the system was somewhat after the course of the old mischievous custom, though shorn of the real wickedness thereof, since the exactions were required as amercements in the nature of revenue for the sovereign. The imposition went against the losing party as a penalty: in the case of the plaintiff for unjustly bringing the defendant into court; and in the case of the defendant for unreasonably resisting the plaintiff's demand. 3 Bla. Com. 399. Later *110 by legislation costs were given the plaintiff, when a prevailing party, but not to the defendant under the same circumstances. 6 Edw. Ch. I, c. 1. Subsequently the same privilege was extended to defendants. 23 Hen. VIII, c. 15. Soon amercements for the enrichment of the sovereign treasury were abolished. 24 Hen. VIII, c. 8. Laws providing for security for costs naturally followed. By the statutes of 3 Jac. I, c. 8, and 3 Car. I, c. 4, § 4, it was provided that in personal actions, with few exceptions to fit particular cases: `No writ of error should be allowed, unless the party bringing the same, with two sufficient sureties, shall first be bound unto the party for whom the judgment is given, by recognizance to be acknowledged in the same court, in double the sum to be recovered by the former judgment, to prosecute the said writ of error with effect, and also to satisfy and pay, if the said judgment be affirmed, or the writ of error non prossed, all and singular the debts, damages, and costs adjudged upon the former judgment, and all costs and damages to be awarded for the delaying of the execution.' 3 Bla. Com. 411, note. Long before the separation of this country from England Blackstone said in giving the state of the law as it then existed:
"`If a writ of error be brought . . . after verdict, he that brings the writ or that is plaintiff in error, must find substantial pledges of prosecution, or bail: to prevent delays by frivolous presences to appeal; and for securing payment of costs and damages, which are now payable by the vanquished party in all, except in a few particular instances, by virtue of the several statutes.'
"Thus it will be seen that substantially every element in our statutes as to costs and security for the payment thereof, is found in the laws of England as they existed before the Revolution, and that it was never supposed there was anything in Magna Carta inconsistent therewith. By gradual approaches, so to speak, the doctrine of the civil law in its entirety was reached and engrafted upon the English system: `Victus, victori inexpensis condemnandus est,' — the vanquished is to be condemned in costs to the conqueror. *111 We inherited the principle thereof as part of the common law. In some form it has found a place in the code of every state of the Union that has followed common-law ideas, notwithstanding the adoption at the same time, in the constitutions of such states, of the essential principles of Magna Carta.
"We often see it stated that costs are a creature of the statute; that costs were not given at common law. Wisconsin C.R.Co. v. Kneale,
In 3 Blackstone's Commentaries 399 (2 Cooley's Blackstone (4th ed.), 1153) Justice Blackstone says:
"Thus much for judgments; to which costs are a necessary appendage; it being now as well the maxim of ours as of the civil law, that `victus victori in expensis condemnandus est' (he who loses the suit pays costs to his adversary): (p) though the common law did not professedly allow any, the amercement of the vanquished party being his only punishment. The first statute which gave costs, eo nomine (by that name), to the defendant in a real action was the *112 statute of Gloucester, 6 Edw. Ch. I, c. 1, as did the statute of Marlbridge, 52 Hen. III, c. 6, to the defendant in one particular case, relative to wardship in chivalry: though in reality costs were considered and included in the quantum of damages, in such actions where damages are given; and, even now, costs for the plaintiff are always entered on the roll as increase of damages by the court. (q) But, because those damages were frequently inadequate to the plaintiff's expenses, the statute of Gloucester orders costs to be also added; and farther directs, that the same rule shall hold place in all cases where the party is to recover damages. And, therefore, in such actions where no damages were then recoverable (as in quare impedit, in which damages were not given till the statute of Westm. 2, 13 Edw. Ch. 1), no costs are now allowed; (r) unless they have been expressly given by some subsequent statute. The statute 3 Hen. VII, c. 10, was the first which allowed any costs on a writ of error. But no costs were allowed the defendant in any shape, till the statutes 23 Hen. VIII, c. 15, 4 Jac. 1, c. 3, 8 and 9 Wm. III, c. 11, 4 and 5 Ann. c. 16, which very equitably gave the defendant, if he prevailed, the same costs as the plaintiff would have had, in case he had recovered. These costs on both sides are taxed and moderated by the prothonotary, or other proper officer of the court."
An examination of the authorities discloses that the idea, as observed in Harrigan v. Gilchrist, supra, that costs are regulated wholly by statute is true; and that a party who claims to be entitled to a judgment for costs against his adversary must bring himself within the operation of some statutory provision.
"In actions at law costs are not recoverable, except pursuant to statutory enactment. The court may not award costs to the successful party; nor, in a case which is within the purview of the statute according a right to costs, has the court any discretionary power as to the award or allowance. Under the statutes the rule is universal, apparently, that in an action at law the right to recover costs is established by, and dependent *113 on, the judgment rendered, or, as it is expressed `costs follow the result as of course.'
"The statutes in some instances have declared that the prevailing party shall recover his costs in all civil actions or proceedings of any kind. Other statutes allow costs to the successful party as a matter of right or `of course' in actions or proceedings which involve controversies as to certain subjects of litigation, such as the title to, or possession of, real property and demands for money or damages.
"In equity proceedings the allowance and imposition of costs, unless otherwise governed by statute or rules of court, do not always follow the outcome of the suit, but rest in the sound discretion of the court according to the justice of the cause or the facts and circumstances of the particular case." 14 Am. Jur. 15-16.
"The right to recover attorneys' fees from one's opponent in litigation as a part of the costs thereof does not exist at common law. Such an item of expense is not allowable in the absence of a statute or of some agreement expressly authorizing the taxing of attorneys' fees in addition to the ordinary statutory costs. This rule is not changed by the fact that fraudulent or malicious acts are disclosed, although in certain circumstances fraud or malice may furnish a basis for the recovery of the expenses of litigation, including counsel fees, as an element of damages . . .
"The term `costs' or `expenses' as used in a statute is not understood ordinarily to include attorneys' fees." 14 Am. Jur. 38.
"A court has no power to award costs unless such power is derived from statute. It has been held that the exercise of this power by the United States Supreme Court, sitting as a court of original jurisdiction in equity, is incidental to its authority as a court of equity, although such power has never been expressly conferred by any act of Congress." 14 Am. Jur. 52.
In absence of contract, statute, or recognized ground of equity, a court has no power to award an attorney's *114 fee as part of the costs of litigation. The statute (Rem. Rev. Stat., § 481) fixed the attorney fee which may be allowed to a successful litigant as costs in a civil action, like the case at bar, in the amount of ten dollars; therefore, no allowance in excess of that amount may be awarded to appellant.
The judgment is affirmed.
ROBINSON, C.J., BEALS, SIMPSON, and JEFFERS, JJ., concur.
