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District Court of Appeal, Second District, Division 2, California.


Civ. 18264.

Decided: June 01, 1951

Guy E. Ward and Kenneth D. Holland, Beverly Hills, for appellant. Harry A. Franklin, Los Angeles, for respondent.

From a judgment predicated upon the sustaining of a general demurrer to plaintiff's second amended complaint without leave to amend in an action to recover damages for wrongful attachment, plaintiff appeals.

Facts: In the complaint it is alleged that on or about May 15, 1947, defendant surety company executed and filed an undertaking on attachment in the principal sum of $3,600 in an action pending in the superior court of Los Angeles County, entitled United Properties, Inc. v. Manuel Reachi (plaintiff herein). Thereafter a writ of attachment was issued in such action and levied on certain real property of defendant Reachi. After trial judgment was rendered in favor of said defendant which judgment is now final. No proceeding was taken to release the attachment nor was any attempt made by plaintiff herein to have the attachment dissolved.

The complaint discloses that plaintiff had incurred (1) attorney's fees in the sum of $2,500 in connection with the defense of the previous action, (2) expense for employment of a surveyor to testify as an expert at the trial whose services were of the value of $506, and (3) traveling expenses necessitated because of the trial in the sum of $1,500.

Questions: First: Was plaintiff entitled to recover, in an action against the surety on an attachment undertaking, counsel's fees incurred in defense of the principal suit?

No. In an action against a surety on an attachment undertaking the measure of damages to be recovered is the actual expense and loss resulting from the levy, including counsel fees for professional services rendered in relation to the attachment, but not counsel fees paid in defense of the principal suit. (Soule v. United States Fidelity & Guaranty Co., 82 Cal.App. 572, 574 et seq. [1], 255 P. 886; Java Cocoanut Oil Co. v. Fidelity & Deposit Co., (9 Cir., Northern Dist. of Cal.) 300 F. 302, 303 et seq., 39 A.L.R. 523. Cf. Hornaday v. Hornaday, 95 Cal.App.2d 384, 393[6], 213 P.2d 91; Albertsworth v. Glens Falls Indem. Co., 84 Cal.App.2d 816, 824[3], 192 P.2d 66.)

In view of the decisions from the appellate courts of California, authorities from other states relied on by plaintiff are not controlling. (Schneider v. Schneider, 82 Cal.App.2d 860, 862[2], 187 P.2d 459.)

Second: Was plaintiff entitled to recover for the expenses incurred in employing an expert witness?

No. Fees paid to an expert witness may be taxed as costs only where the services of such expert are necessary for the proper presentation of the case and where the expert has been appointed by and under the direction of the court. (Bathgate v. Irvine, 126 Cal. 135, 149, 58 P. 442. See 7 Cal.Jur. (1922) sec. 23, page 283.) In the instant case the record fails to disclose that the expert was appointed by the trial court.

Third: Was plaintiff entitled to his expenses incurred in attending the trial?

No. A party in whose favor judgment is rendered who voluntarily attends the trial is not entitled to recover transportation or hotel expenses. In this case plaintiff voluntarily attended the trial and the foregoing rule is therefore applicable.

In view of our conclusions it is apparent that plaintiff's second amended complaint failed to allege a cause of action against defendant. The trial court properly sustained a demurrer thereto without leave to amend.


McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.

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