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Leslie v. Carter.

v. Land & Water Co., 118 Pac. 425; Van Horn v. Treadwell, 130 Pac. 5; Bracken v. Trust Co., 167 N. Y. 510; Township v. Wiggins, 120 N. W. 1032; Munson v. Straits, 99 Fed. 787, 100 Fed. 1005; Lowell v. House of Good Shepherd, 44 Pac. 253; Suisun Lbr. Co. v. School District, 127 Pac. 349; Marvin v. Prentiss, 94 N. Y. 295; Cook v. Printing Co., 227 Mo. 524; Panoulias v. Equipment Co., 198 Fed. 493.

WALKER, J.-This is an action to recover the expenses of litigation, including attorneys' fees, alleged to have been incurred by the plaintiff in a former proceeding against the defendant to set aside a deed for fraud, and for an accounting. In the latter action, brought, as was the one at bar, in the circuit court of Jasper County, plaintiff had judgment, and upon an appeal to this court the same was affirmed except as to a correction in the allowance of interest. [240 Mo. 552.]

Defendant demurred to the petition filed in the suit at bar and from the judgment sustaining this demurrer plaintiff appeals. The amount sued for fixes the jurisdiction of this court.

The grounds on which the sufficiency of the petition was challenged were: (1) that the damages sued for, to-wit, the expenses in preparing for trial and attorneys' fees, were not recoverable in an action of this nature; and (2) if recoverable they should have been included in the original suit.

Fees: Cost
of Litigation.

I. The weight of authority here and elsewhere is against the right of recovery in actions of this character. Here taxable costs are fixed by statute and do not embrace expenses of litigation, including attorneys' fees. The exceptions to this rule created by statute or established by the usage of the courts and familiar to every lawyer, are fully stated by LAMM, J., in

Leslie v. Carter.

Johnson v. United Railways, 247 Mo. 1. c. 348, and need not be set out here or further adverted to except to say that expenses of the character here sued for are not included therein. Color for the claim here made is sought in the ruling of this court in State ex rel. v. Tittmann, 134 Mo. 1. c. 170, an action to recover damages for the breach of a curator's bond in which it was held, more by implication than a direct ruling, that "counsel fees and other expenses of prior litigation were recoverable as damages." Subsequently this court, in Albers v. Merchants' Exchange, 138 Mo. 140, thus distinguished the Tittman case:

"The obligation to pay the attorneys' fee in the case did not arise out of the fact that the ward was successful in his suit against his curator, but the liability was determined by the terms of the curator's bond, which, it was properly held, stood good as an indemnity against all the natural and proximate consequences of a breach of the duty which the curator owed the ward."

In the Albers case the plaintiff was attempting to recover attorney's fees alleged to have been paid y him in resisting the effort of the Merchants' Exchange to remove him therefrom as a member. The conclusion of the court in that case was that costs of the character there sued for could not be classified as damages and were therefore not recoverable. The court in so ruling declares that "the law of this State, in denying a party the right to recover from his adversary the expenses of litigation other than statutory taxable costs is in harmony with the law of our sister states."

In the discussion of this case Judge GANTT, speaking for the court, says arguendo:

"Did the circuit court err in holding that plaintiff was not entitled to recover back this fee because there was no evidence that the directors were actuated by malice in suspending plaintiff from membership, and

Leslie v. Carter.

that, in the absence of malice, the attorney's fee could not form an element of his damages?"

This language, as was said in Winstead v. Hulme, 32 Kan. 568, might seem to imply that if it had been shown that malice or oppression had mingled in the controversy, then such costs as are under consideration might be recovered. It is evident, however, from the entire opinion that what the court meant was that if the evidence disclosed that the original action was prompted by malice or oppression punitive damages might be recovered and that the amount shown to have been expended by the prevailing party in the litigation could be taken into consideration in fixing the whole amount of the judgment. The court's language sustains our conclusion. We have reference to its declaration "that in the absence of malice attorney's fees will not form an element of plaintiff's damages." Why an element if it constitutes the basis of the plaintiff's right of action? But it does not, and being only an element thereof it may simply be taken into account in the presence of malice, in determining the total amount of plaintiff's damages in the event of his recovery. Construed otherwise the conclusion reached in the Albers case would not be consonant, as the court declares it to be, with the strong current of authority elsewhere.

The rule announced in the Albers case has been affirmed in principle in Pickel v. Pickel, 243 Mo. 1. c. 665, the court holding that a fee would not be allowed to plaintiff's attorney as a part of the decree in a suit to set aside a fraudulent transfer of corporate stock. And in Johnson v. United Railways, 247 Mo. 1. c. 348, involving the liability of a corporation for rights of action existing against another corporation which had transferred its franchise and assets to the former, the court held that a claim for attorneys' fees for prosecuting to final judgments this class of claims against the transferee company would not be allowed,

Leslie v. Carter.

the application therefor being held to be without any authority.

Courts of last resort in many other jurisdictions are not less emphatic in declaring the existence of the rule. In fact many of them not only hold that expenses of litigation, including attorneys' fees, will not be recognized as forming the bases of independent actions, but that they will not be allowed in the principal suit as an element of damages even where punitive or exemplary damages are allowable. Nor is it material as to the character of the action, whether it be ex contractu or ex delicto; the application of the rule is the same and nothing except costs ordinarily taxable can be allowed or recovered. [Day v. Woodworth, 54 U. S. 363; Railroad v. Citizens Traction and Power Co., 16 N. M. 163; Earl v. Tupper, 45 Vt. 275; Fairbanks v. Witter, 18 Wis. 287; Winkler v. Roeder, 23 Neb. 706, 8 Am. St. Rep. 155; Bull v. Keenan, 100 Iowa, 144; Landa v. Obert, 45 Tex. 539; Evans v. Ins. Co., 87 Kan. 641, 41 L. R. A. (N. S.) 1130.]

II. Moreover, if the damages here sued for were recoverable, a claim therefor should have been included in the principal suit. The splitting of causes of actions tends to unnecessarily burden the courts and increases the cost of litigation. If, therefore, plaintiff's right of action be conceded, there was nothing in the nature of her claim not reasonably ascertainable at the time of the trial of the principal suit and under proper pleadings the entire matter could have been determined. As we said in St. Louis v. United Railways, 263 Mo. 387, 1. c. 423, "the doctrine as now recognized directly forbids the retrial of an issue, and necessarily involves the bar of a suit brought on a cause of action which should have formed the basis of a prior suit and been tried therein. And this bar

Taxing Costs in Same Suit.

Leslie v. Carter.

is held to apply even where the subsequent suit is for a claim or relief arising out of the same cause of action, and not asked in the former suit.'”

Plaintiff's claim as asserted here, if recoverable, belonged to and arose out of her original cause of action, and by a reasonable exercise of her rights it could have been made a part of same. This not having been done the rule of res adjudicata will apply with as much force as if the matters now sought to be adjudicated had been put in issue. [Summet v. Realty & Brokerage Co., 208 Mo. 1. c. 511; Cook v. Globe Ptg. Co., 227 Mo. 1. c. 524.]

In Van Horne v. Treadwell, 164 Cal. 620, the plaintiff had instituted a former suit to recover pledged stock claimed to have been fraudulently appropriated by the defendant, and obtained a decree. He afterwards instituted a separate suit for expenses and attorneys' fees incurred in the former proceeding. The Supreme Court of California denied him the right to maintain the second suit on the ground that it was res adjudicata, holding that the plaintiff could not split his demand for relief so as to entitle him to recover a part of same in one action and the remainder in another; that the demand for the repayment of the expenses of the suit, including attorneys' fees, if a proper element of damages at all, was such as flowed from the single wrongful act of withholding the delivery of the stock.

In Abbott v. The 76 L. & W. Co., 161 Cal. 42, it was sought to recover damages plaintiff claimed to have sustained by reason of a former suit. The court denied the plaintiff the right to maintain the second suit saying, in effect, that under elementary principles he was bound to obtain all his relief in one action and could not recover part in one and part in another. Resorting as he did to an action in equity, the court had power to give him all the relief he was entitled to, and his subsequent action on the same contract was

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