Singer v. Fidelity and Deposit Co.

Schmucker, J., delivered the opinion of the Court. The controversy of which this appeal is an incident has been before us on three previous occasions. It originated in a replevin issued out of the Superior Court of Baltimore City by the Standard Horseshoe Company against Bernard. J. O’Brien aud Frank O. Singer, Jr., to whom he had made a deed of trust for the benefit of his creditors.

The first trial of the replevin suit resulted in a judgment for the defendants which was reversed, on appeal, by this Court and the case remanded for a new trial in The Standard Horseshoe Co. v. O'Brien et al., 88 Md. 335 . The second trial also resulted in a judgment for the defendants which was affirmed by this Court in 91 Md. 751 . O’Brien and Singer then brought suit,- to the use of Singer as trustee, in the same Court against the present appellee, the Fidelity and Deposit Co., as surety on the replevin bond and recovered a judgment which we reversed without awarding a new trial in 94 Md. 124 . In reversing this judgment we directed the costs in the Superior Court to be paid by the Fidelity and Deposit Company.

When the suit on the replevin bond was instituted in the ²²³ Superior Court against that company it disputed under oath the entire claim of the plaintiff. When it lost the case the Court, after the entry of the judgment, passed an order allowing the plaintiffs a counsel fee of $100 in exercise of the power conferred on it by sec. 315 of ch. 123 of the Acts of 1898, which reads as follows: “If the defendant shall dispute the whole or any part of the plaintiff’s demand, in any action brought under the provisions of the three foregoing sections, and upon trial of the case the plaintiff shall recover a judgment for any portion of the demand so disputed, then the plaintiff shall be allowed, in addition to the costs of the suit reasonable counsel fees to be fixed by the Court, said fees to be not less than twenty-five dollars, nor more than one hundred dollars.” After the reversal by us of the judgment on the replevin bond the Fidelity and Deposit Company paid all of the costs in the Superior Court of that suit but declined to pay the 1100 counsel fee allowed by that Court to the plaintiffs. The plaintiffs, who are the present appellants, thereupon directed the clerk to issue a fi. fa. for the counsel fee. The clerk issued a fi.fa. for the entire costs including the counsel fee endorsing on the writ a credit for the costs already paid by the appellee leaving a balance due under the writ of $100.

The defendant filed in the Superior Court a motion to quash this writ, which motion the Court granted asserting in its order that the counsel fee was not part of the costs but was an incident to the judgment and became nullified by the reversal of the latter upon the appeal. From that order the present appeal was taken. The appellant contends that the counsel fee in question must be treated and