Brinker v. Leinkauff

Mississippi Supreme Court
Brinker v. Leinkauff, 64 Miss. 236 (Miss. 1886)
Cooper

Brinker v. Leinkauff

Opinion of the Court

Cooper, C. J.,

delivered the opinion of the court.

*240The demurrer was properly sustained. The damages which by their bond the appellees bound themselves to pay to the appellant were such as should result from the seizure of the goods and did not' include attorneys’ fees nor other expenses incurred by the appellant in defending his title to the property. Stauffer v. Garrison, 61 Miss. 67.

In Baggett v. Beard, 43 Miss. 120, it was held that attorneys’ 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, attorneys’ 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 attorneys’ fees and collateral damages pronounce the true rule, we will adhere to it except as precluded by the decisions relative to injunction bonds.

Judgment affirmed.

Reference

Full Case Name
J. R. Brinker v. J. H. Leinkauff
Cited By
1 case
Status
Published
Syllabus
Indemnifying Bond. Given in attachment. Action for damages. Attorney's fees and incidental expenses. 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 not being charged in the declaration that there was any willful wrong or oppression in such seizure, it is improper to allow to a successful claimant as damages for goods so seized the amount he has expended for attorney’s fees in maintaining his claim,1 or for his personal expenses and loss of time in attending the trial, in the attachment proceeding.