Clayton-Hughes v. Glass , 138 Miss. 839 ( 1925 )

^* Headnote 1. Exemptions, 25 C.J., Section 296 (1926 Anno). The appellant, Clayton-Hughes Company, a corporation, recovered a judgment in the circuit court of Quitman county against the appellee, H.D. Glass. Execution was issued thereon and levied upon a county warrant of the value of fifty dollars, the property of the appellee, the judgment debtor. The appellee gave the sheriff notice that he would claim this warrant as exempt, and the sheriff thereupon demanded and the appellant executed an indemnity bond as provided by section 2143, Code of 1906 (section 1818, Hemingway's Code). The appellee then filed his claim of exemption and replevied the warrant by executing a bond, payable to the plaintiff in execution, and conditioned to have the property forthcoming, to abide the event of an issue to be made up at the return term of the process, as provided by section 2145, Code of 1906 (section 1820, Hemingway's Code). The sheriff returned these bonds with the process, and at the return term issue was tendered and joined upon the right of appellee to claim the warrant as exempt and recover damages for wrongful levy thereon.

The appellee offered testimony establishing the fact that he was a citizen of the state, a householder, and having a family residing in the town of Lambert, and that to establish his claim of exemption he had contracted to pay an attorney's fee of twenty-five dollars. At the conclusion of testimony the court peremptorily instructed the jury to return a verdict for the defendant in execution and assess his damages at seventy dollars, being doubt the amount of attorney's fees contracted, and the twenty-dollar penalty provided by section 2145, Code of 1906 (section 1820, Hemingway's Code).

The only assignment of error which we deem it necessary to notice is based upon the action of the court in allowing a recovery of double attorney's fees as damages. Section 2144, Code of 1906 (section 1819, Hemingway's Code), provides that, where an indemnity bond has been given, the defendant in execution may sue on the bond in the name of the payee, for his use, and recover double damages for the loss he has sustained by the seizure or sale of the property, while section 2145, Code of 1906 (section 1820, Hemingway's Code), provides that, where any defendant whose exempt property has been seized has replevied the property, and the issue upon the claim of exemption is found for the defendant, he shall recover costs, damages, and a penalty of twenty dollars of the plaintiff and his sureties on the bond of indemnity, if any have been given. The remedy on an exemptionist provided by the latter section is analogous to replevin, and prior to the enactment of section 4242, Code of 1906 (section 3071, Hemingway's Code), which first appeared in the Code of 1880 as section 2633 thereof and provides that "the action of replevin shall not be maintainable in any case of the seizure of property under execution or attachment when a remedy is given to claim the property by making claim to it in some mode prescribed by law, but the person claiming must resort to the specific mode prescribed in such case, and shall not resort to the action of replevin," it was held by this court that a judgment debtor, whose exempt property has been seized under execution, could maintain replevin against the officer therefor, and that the exemptionist's remedy provided by section 2134, Code of 1871 (section 2145, Code of 1906; section 1820, Hemingway's Code,) was not exclusive. Moseley v. Anderson,40 Miss. 49; Ross v. Hawthorne, 55 Miss. 551.

It has been repeatedly held by this court that, in an action of replevin, attorney's fees are not recoverable where the proof fails to show any willful wrong, fraud, malice, or oppression on the part of the plaintiff. In the case of Brinker v. Leinkauffet al., 64 Miss. 236, 1 So. 170, in an action on a bond given to indemnify the sheriff or any claimant against damages, which might result from the wrongful seizure of goods under an attachment, it was held that, in the absence of evidence of willful wrong or oppression in the seizure, attorney's fees were not recoverable by a successful claimant, and the court there strongly intimated that the liability on other bonds of substantially the same character would not be construed to cover such collateral damages as attorney's fees, the court saying:

"In Baggett v. Beard, 43 Miss. 120, it was held that attorney's fees were recoverable upon an injunction bond, and that decision as to that character of bond has been since followed. To decline to give the same construction to bonds substantially the same, given in other suits, produces want of harmony in our decisions, but it is well settled that in actions of replevin, in the absence of fraud, willful wrong, or oppression, attorney's fees cannot be recovered. In any event there will not be uniformity of construction upon obligations practically the same, and, believing that the decisions against the liability of the obligors in the bond for attorney's fees and collateral damages pronounce the true rule, we will adhere to it except as precluded by the decisions relative to injunction bonds."

The method prescribed by section 2145, Code of 1906 (section 1820, Hemingway's Code), for an exemptionist to replevy exempt property levied upon by a judgment creditor, is analogous to a proceeding in replevin, and as to the recovery of attorney's fees, we think the same rule applies, and that the liability against the officer, or on the bond of idemnity if one has been given, cannot be extended to cover such collateral damages as attorney's fees, in the absence of evidence of fraud, willful wrong, oppression, or malice.

The appellee cites the case of Harris Ice Cream Co. v.Hartsock, 127 Miss. 271, 90 So. 7, as a case in which a recovery of attorney's fees was allowed. It is true that the statement of facts in the Hartsock case shows that attorney's fees were assessed upon the indemnifying bond; but the right to recover such fees as an element of damages was not there contested or decided. The only points decided in that case were, first, that the defective proceeding below had been waived by an agreement that the suit should proceed as one upon the indemnifying bond, and second, that the exemption provided by section 2147, Code of 1906 (section 1822, Hemingway's Code), was not limited to residents of incorporated cities, towns, and villages.

There was no evidence of other actual damages, and the judgment of the court below allowing the recovery of double the amount of attorney's fees incurred by the exemptionist will be reversed, and judgment will be entered here for the appellee for the twenty dollars statutory penalty.

Reversed, and judgment here for appellee.