James v. Cannell , 135 Wash. 80 ( 1925 )

I dissent. The majority opinion is based upon the assumption that, since attachment and garnishment are similar and the majority of the states hold that attorney's fees may be recovered in attachment cases where there is no express provision for the recovery of attorney's fees, a like rule should apply to garnishments. In most states the garnishment and attachment statutes are combined, and in recognition of the fact that attachment is not only an extraordinary remedy, but is usually a drastic one, the courts have construed the word "damages" to mean attorney's fees. But no such situation exists in this state. Prior to the enactment of the present law upon garnishment and attachment, the two were combined; but the legislature saw fit to separate them, no doubt for the reason that it realized that attachment was resorted to only in exceptional cases where real property, household goods, stocks of goods, or other personal property is involved, while the writ of garnishment is customarily and generally used to prevent the withdrawal of money from either an employer or a bank. My reason for dissenting is found in the wording of the statute itself. The statute on attachment (Rem. Comp. Stat., § 652) [P.C. § 7384], provides that,

"The bond shall be . . . conditioned that the plaintiff will prosecute his action without delay, and will pay all costs that may be adjudged to the defendant and all damages which he may sustain by reason of the attachment."

The statute on garnishment (Rem. Comp. Stat., § 681) [P.C. § 8000], provides that,

"The bond shall be . . . conditioned that he will prosecute his suit and pay all damages and costs that may be adjudged against him."

If these two sections stood alone, it might be urged that the word "damages" in both should be given the same construction, but there is a further provision in the law upon attachment as follows:

"In an action on such bond, the plaintiff therein may recover, if he shows that the attachment was wrongfully sued out, and that there was no reasonable cause to believe the ground upon which the same was issued to be true, the actual damages sustained and reasonable attorney's fees to be fixed by the court;". Rem. Comp. Stat., § 654 [P.C. § 7386].

There is also a provision in the law of garnishment providing for attorney's fees to a garnishee defendant; Rem. Comp. Stat., § 704 [P.C. § 8023]:

"Where the garnishee is discharged upon his answer, the costs of the proceeding, including a reasonable compensation to the garnishee for attorney's fees, shall be taxed against the plaintiff; . . ."

There is no statute relative to garnishment like § 654 on attachment, and since the legislature made express provision for attorney's fees in attachment and as to the garnishee defendant in garnishment actions, I cannot believe that as to the defendant the legislature "left that provision out in words with the intent that it should be supplied by construction."

There is another reason which impels me to this view; and that is that it would appear to be the settled policy of this state, as shown by the different statutes and innumerable decisions of this court, that attorney's fees other than the statutory amounts should only be allowed in exceptional cases, and then only where expressly provided in the statute.