Opinion
13560
January 21, 1933.
Before WHALEY, J., County Court, Richland, December, 1931. Affirmed.
Action by the Frick Company, Inc. against George H. Dieter trading under the name and style of the Palmetto Fish Oyster Company and another. Judgment for the plaintiff and the defendants appeal.
The order of Judge Whaley is as follows:
This matter comes before me by agreement of the parties for the purpose of having determined whether or not the plaintiff is entitled to assess damages against the attachment bond executed and delivered by the defendants in connection with a suit instituted by the defendant George H. Deiter, trading under the firm name aforesaid, against the said Frick Company, Inc., in this Court, the said bond being in the sum of $250.00, and given pursuant to Section 530, Vol. 1, Code of Laws of 1932.
From the verified complaint exhibited before me, it appears that upon the issuance of the attachment aforesaid the defendant, Frick Company, in order to have the personal property thereby attached released and to regain custody and possession thereof, executed and delivered a good and sufficient bond in the penal sum of $4,000.00, conditioned for the payment to the said George H. Deiter, trading as aforesaid, of any judgment that he might recover in said action and all costs awarded by the Court.
It is further made to appear that, when the case entitled above came on for trial in this Court on or about September 23, 1931, it resulted in the granting and entry of a voluntary nonsuit.
From the complaint herein it is alleged that by reason of the attachment and retention of its personal property the plaintiff, Frick Company, Inc., was deprived of the control and custody thereof, and suffered further damages on account of being required to pay the premium on the aforesaid replevy bond in the amount of $80.00 to effect a release of said personal property, and suffered further damages in assembling witnesses and otherwise preparing for the defense of said action in the payment of freight charges in connection with the transportation of necessary exhibits to the place of said trial and on account of being required to employ the services of attorneys to effect a release of said attachment and to defend its interests therein.
The defendants by their answer admit the suing out of the attachment aforesaid and the entry of a voluntary nonsuit, but in effect deny the material allegations of the said complaint and raise a plea in bar with respect thereto, and by way thereof allege that, inasmuch as defendants have paid all costs properly taxable in the cause, they have discharged all obligations due plaintiff under said bond and attachment.
The first and primary question for determination herein is whether or not the granting and entry of a voluntary nonsuit is the equivalent to the recovery of judgment by the defendant or to the vacation or setting aside of the attachment by direct attack or as a result of a trial of the case on its merits. The bond in question is conditioned according to the requirements of Section 530, and, interpreting this Section in the light of the remedy and protection sought to be granted thereunder by the Legislature, I conceive that the defendant is entitled to assess damages under the bond under two conditions: First, where the defendant recovers judgment and/or where the attachment is set aside, dissolved, or vacated.
The legal effect of the entry of the voluntary nonsuit was to discontinue and end such action, without prejudice to the right of the plaintiff to renew his action upon a properly prepared complaint. Therefore I am of the opinion that the order of nonsuit is equivalent to the dissolution, vacation, and setting aside of said attachment, because the attachment necessarily falls upon the termination of the action adverse to the plaintiff. The right of an attachment is a summary proceeding, and can only be resorted to when all of the provisions of the statute are fully complied with. It is allowed and sued out only upon the condition that the plaintiff furnish a good and sufficient bond conditioned that, if the defendant recover judgment or the attachment be vacated, the plaintiff will pay all costs that may be awarded to the defendant and all damages which he may sustain by reason of the attachment to the amount stipulated in the undertaking.
I am of the further opinion that an action for the assessment of damages under a bond, given pursuant to statute, is greatly different from an action instituted under the exercise of the common-law right to recover damages for the malicious or other improper attachment of another's property. The latter action is determined generally by the laws relating to torts, and the former is governed by the language used in the statute. Under an action on a bond given pursuant to the statute, there need be no showing that the attachment was either improperly or maliciously sued out. The mere fact that the plaintiff failed to recover or the attachment is set aside is sufficient to warrant a recovery. Therefore, I hold plaintiff is entitled to assess damages under the bond.
The general rule is that all actual damages, compensatory in nature, such as the loss or depreciation in value of the property attached and the costs and expenses which naturally and proximately result from the attachment, may be recovered in a suit on the attachment bond. There is no proof here that the plaintiff sustained actual damages by reason of its deprivation of the custody and possession of the personal property or that it diminished in value while it was in the hands of the sheriff, and therefore these elements of damage may not be considered. However, the plaintiff is entitled to recover the amount expended by it to cover the bond premium, or $80.00, and to reasonable attorney's fee. In determining the amount of the fee, only the services of the attorney in effecting a release of the attachment can be considered. As the services consisted of preparing the necessary bond and having it properly executed and filed, I hold that $15.00 is reasonable compensation for such work. The value of the services rendered by the attorneys in connection with defending the case on its merits may not be assessed as damages. The Clerk of Court has no authority to pass upon the question of damages, and therefore the defendant's contention that his order taxing costs in the case precludes this action is overruled.
It is therefore ordered, that the plaintiff recover judgment of the defendant for the sum of $95.00 and for the costs of this proceeding.
Mr. Alva C. DePass, for appellant, cites: As to attachment: 38 L.R.A. (N.S.), 120; 24 S.E., 246; 120 U.S. 206; 73 Ala., 183; 75 Tex., 562; 125 S.W. 964; 22 Fla., 480; 43 S.C. 396; 21 S.E., 317. Injunction bond: 65 S.C. 157; 19 S.C. 236; 150 S.C. 438.
Messrs. Thomas, Lumpkin Cain, for respondent.
January 21, 1933. The opinion of the Court was delivered by
We are of the opinion that the order of his Honor, County Judge Whaley, appealed from in this cause, was entirely correct. The granting of the nonsuit ended the case and resulted in the vacation of the attachment. See Duncan v. Duncan, 131 S.C. 238, 126 S.E., 763.
The order appealed from is affirmed.
MESSRS. JUSTICES STABLER and BONHAM and MR. ACTING ASSOCIATE JUSTICE C.C. FEATHERSTONE concur.