City Bank & Trust Co. v. Kwaske Bros. Construction Co.

259 N.W.2d 407, 78 Mich. App. 158, 1977 Mich. App. LEXIS 1177

• Court: Michigan Court of Appeals
• Decided: September 7, 1977
• Docket: Docket 30246
• Status: Published

Opinions

D. E. Holbrook, Jr., J.

City Bank and Trust Company appeals an order of the lower court allowing costs and attorney’s fees of $3,731.20 in favor of Brooks Abstract Company. A detailed recounting of the facts in this case appears in City Bank & Trust Co v Kwaske Brothers Construction Co, 69 Mich App 271; 244 NW2d 443 (1976). Suffice it to say for purposes of this case that the garnishee defendant, Brooks Abstract Company, prevailed via summary judgment in the lower court to the effect that there was a finding of no liability to the principal defendant.

The taxation of costs from the garnishment proceedings is the issue to which we address ourselves. In doing so, we affirm the result reached by the lower court.

The applicable court rule, GCR 1963, 526.9, pertaining to costs in a garnishment proceeding, controls over other subsections of GCR 526 whenever a garnishment action is involved. Plaintiff urges us to apply subsection 526.7 (Costs on Summary Judgment) on the premise that even though this case is a garnishment proceeding it did, in fact, end in summary judgment. A holding of that sort would contravene the general rule followed by Michigan courts that the more specific rule controls. See Reed v Secretary of State, 327 Mich 108; 41 NW2d 491 (1950). Accordingly we find that 526.9 was correctly called into application.

Within 526.9(1) plaintiff argues that attorney’s fees should be limited to those incurred in filing the disclosure.¹ Instead we understand the court rule as permitting those fees as well as other necessary expenses incurred by attorney and client alike.

Affirmed.

Allen, J., concurred.

1 ".9 Costs in Garnishment Proceedings. Costs in garnishment proceedings shall be allowed as in civil actions. The judge in awarding costs may

"(D in case the issue of the garnishee’s liability to the principal defendant is not brought to trial, award the garnishee as costs against the plaintiff such reasonable attorney’s fees as the garnishee incurred in filing his disclosure and other necessary expenses.”