Alexander v. Harrison

• Decision Date: 31 March 1866
• Citation: 38 Mo. 258
• Parties: JOSHUA H. ALEXANDER, Respondent, v. JAMES HARRISON et al., Appellants.
• Court: Missouri Supreme Court

38 Mo. 258

JOSHUA H. ALEXANDER, Respondent,

v.JAMES HARRISON et al., Appellants.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Circuit Court.

The facts are stated in the opinion. The defendants asked the court to instruct the jury as follows, which the court refused, and defendants excepted:

1. In order to enable the plaintiff to recover on the second count in the petition for a malicious prosecution, the burden of proof is on the plaintiff, to show by evidence satisfactory to the jury, that the defendant was directly connected with the execution of the writs of attachment, by delivering the writ to the sheriff, or by participating in his proceedings for the levy, or by directing him to make the levy; and if the jury find that the suit was commenced by the advice of an attorney learned in the law in the State of Illinois, then the plaintiff cannot recover in this action on the second count for the alleged malicious prosecution.

2. If the jury find from the evidence that the attachment suit was commenced in Illinois, by the attorneys Kœrner and Morrison, or either of them, for Chouteau, Harrison & Valle; that writs of attachment were sued out by said attorneys in the State of Illinois, upon their own judgment and opinion that said Alexander was liable to said suit by attachment upon said notes; and that the said Chouteau, Harrison & Valle were neither of them present when said writs were sued out; and that neither of them had anything to do with delivering the said writs of attachment to the sheriff or sheriffs who executed them, but that said writs were delivered or directed to the officers for execution by the said attorneys, or one of them, in the State of Illinois; and that said attorneys did not consult said Chouteau, Harrison & Valle as to the levy upon said lands, but directed the levy upon the lands seized upon their own knowledge and opinion, and without any direction to do so by said Chouteau, Harrison & Valle; and that said attorneys did so in good faith, with intent to collect the said notes, and for no other purpose, then the plaintiff cannot recover for any damages for maliciously suing out an attachment; and the jury will find a verdict for the defendants on the second count in plaintiff's petition.

3. If the jury find from the evidence that the notes sued on in Illinois by defendants were the notes of the Ohio & Mississippi R. R Co., and issued for debts due by said company to different persons, and endorsed to Chouteau, Harrison & Valle, and that said Chouteau, Harrison & Valle knew the said notes were the notes of said company, and issued for debts of said company, and that Chouteau, Harrison & Valle tried to collect said notes of said company, and also of Page & Bacon, and failed; and that Chouteau, Harrison & Valle thereupon gave the notes to an Illinois lawyer or lawyers to be collected; and that said lawyers were competent and skillful in their profession, or that either of them were so; and that by the advice of said lawyer or lawyers, suit was commenced by defendants in Illinois against Alexander, for the sole purpose of endeavoring to collect the amount due on said notes, and without any other purpose or object; and that said lawyer or lawyers advised the defendants that said suit could be maintained on said notes against said Alexander, in Illinois then the jury is directed to find for defendants on the second count in the petition.

The plaintiff asked the following instructions, which were given:

1. The jury are instructed that, if the defendants failed to prosecute an attachment sued out of the Circuit Court of Marion county, State of Illinois, by them against the estate or lands of plaintiff Alexander, (which fact is admitted by the pleadings,) then the plaintiff is entitled to recover, upon the first count in his petition, such damages as they believe, from the evidence, plaintiff sustained by the bringing of said attachment suit; and such damages will include all the reasonable costs and expenses of defending said attachment suit, including whatever fee the services of the counsel employed by Alexander to defend said suit were reasonably worth, and all traveling expenses necessarily incurred in traveling to and from, and remaining at, the courts where said suit was pending, to attend said suit; also, in getting testimony for said defence; also, whatever the time and labor of the plaintiff, necessarily employed in the defence of said suit, were reasonably worth; and the jury may include interest on such amounts from the time of the commencement of this suit.

2. If the plaintiff consulted a man who had retired from the practice of the law, and was not familiar with the law and practice at the time he was consulted, the advice of such a person that Alexander was legally liable upon the claims sued on in the attachment suit, would not be a sufficient justification for bringing such a suit, if the plaintiff knew at the time that Alexander did not justly owe him the debt for which he sued.

3. If the jury believe from the evidence that the defendants brought the attachment suit against Alexander maliciously and without probable cause, they will find for the plaintiff on the second count of his petition, and may assess such exemplary damages as they may believe from the circumstances of the case, as detailed in the evidence, the plaintiff ought to recover. The jury, however, will not allow damages on account of any matter for which they have allowed damages on the first count or cause of action.

To the giving of which the defendants excepted.

The court gave the following instruction to the jury for the defendants:

If the jury find from the evidence that the present defendants brought their suit in Illinois against Alexander on the advice of counsel reason ably skilled in the law, and that said counsel was apprised of the facts relating to the claim against Alexander; and said suit was brought in good faith, to recover what the plaintiffs in that suit, on the advice of their counsel, believed to be a legal claim against said Alexander, then the defendants in this suit had probable cause for bringing their said attachment suit, and are entitled to a verdict on the second count or cause of action.

There are two counts, or causes of action, in the plaintiff's petition, and the jury must find a separate verdict on each count.

Hill & Jewett, for appellant.

I. In an action for a malicious attachment, the defendant must be connected, by averment, with the execution of the process, by delivering the writ to the officer, or participating in his proceedings--Marshall v Betorce, 17 Ala. 832; Stone v. Swift, 4 Pick. 389; Donnell v. Jones, 13 Ala. 490; 17 Ala. 167; Wiley v. Traiwick, 14 Texas, 662; Wood v Weir, 5 B. Mon. 544; Kirksey, v. Jones, 7 Ala. 622; Young v. Gre gorie, 3 Cal. 446; Boon v. Maul, Penn. (N. J.) 631; see cases cited in Drake Att. § 732, n. 2, 2 ed.

After the suit was brought, the Supreme Court of Illinois declared the law to be, that although it was prima facie the individual note of Alexander, yet that it was competent for him to show by parol evidence that it was the note of the Ohio and Mississippi Railroad Company. The attachment suit was then dismissed, and the defendant sued on the bond, and joined a count for malice.

The instructions of the court were erroneous in directing the jury that they might allow smart money for malice against the defendants, plaintiffs in the attachment. For this, the judgment should be reversed.

G. P. Strong, for respondents.

Malice is the doing any act injurious to another, without a just cause--3 Bouv. L. Dict., “Malice,” 105; Greenl. Ev. § 34, n. 2; Id. § 453; 11 S. & R. 39, malice may be inferred; 3 Sto. R. 7; 5 B. Mon. 550; 14 Texas, 671. As to advice of counsel--2 Greenl. Ev. § 459. The testimony showed that Morrison, one of the counsel, was a sort of general speculator, and had not practiced law for years. Kirksey v. Jones, 7 Ala. 627-8, p. 628, the court remark that “the authority to sue out an attachment is within the scope of the power of an attorney, and therefore the principal is necessarily answerable in damages for the abuse of it.”

In the case at bar, the defendants executed the bond for the very purpose of securing an attachment against plaintiff's property.

HOLMES, Judge, delivered the opinion of the court.

The petition contained two counts. The first count was founded upon a wrongful suing out of an attachment merely. The second was based upon the ground that the attachment suit was malicious and without probable cause. The plaintiff recovered nine hundred and fifty dollars damages on the first count, and two thousand dollars on the second. No question is raised here under the first count, and the consideration of the case will be confined to the second count.

The defendants insist that the court below erred in instructing the jury on the question of malice and want of probable cause, and in excluding testimony as to...