Beyersdorf v. Sump

• Decision Date: 14 December 1888
• Citation: 39 Minn. 495,41 N.W. 101
• Parties: BEYERSDORF v SUMP ET AL.
• Court: Minnesota Supreme Court

39 Minn. 495

41 N.W. 101

BEYERSDORFvSUMP ET AL.

Supreme Court of Minnesota.

Dec. 14, 1888.

(Syllabus by the Court.)

1. In an action for damages for the malicious issuance of an attachment, against the plaintiff in the attachment suit it must be alleged and shown that it was issued maliciously, and without probable cause. But a complaint which alleges that the affidavit for an attachment, made by the party plaintiff in such suit, was false in every particular, and so known to be by the affiant at the time, is sufficient as against a general objection at the trial to the admission of any evidence under it.

2. The pendency of a former action for the same cause, and between the same parties, may be shown in abatement, where a judgment in such action would be a bar to a judgment in the second action; and it is not material that the form of the two actions may differ, or that there are additional parties defendant in such former suit, if each action is predicated upon substantially the same facts as respects the defendants named in both.

3. Where, in trespass de bonis, two defendants are found jointly liable for a portion of the goods, and one severally liable for the balance, the verdict may be according to the facts as found.

4. Where goods are wrongfully and fraudulently withheld from the owner, for the purpose of subjecting them to levy under process to be issued, the wrong-doer will not be permitted to show the application thereof in satisfaction of an execution issued upon a judgment against the owner. But where goods, though detained without lawful authority, are subject to levy, aud are in good faith and without fraud or collusion subsequently levied on and sold under process against the owner, that fact may be shown in mitigation.

Appeal from district court, Hennepin county; REA, Judge.

Action by Charles Beyersdorf against A. L. Sump and another, for damages for the malicious issuance of an attachment. Judgment for plaintiff, and defendants appeal.

Jordan, Penney & Hammond, for appellants.

John H. Long, for respondent.

VANDERBURGH, J.

There is no evidence that the attachment described in the complaint was issued maliciously, and without probable cause; and the court submitted the case to the jury solely upon the evidence of the conduct of the defendants in withholding the goods from the plaintiff after the dissolution of the attachment.

1. No objection having been made to the complaint for misjoinder of causes of action, the court properly overruled the objection made on behalf of both defendants jointly to the admission of any evidence in the case under the complaint. In respect to the defendant Mullen, the officer who attached the property in question, it is alleged that he refused to deliver the same to plaintiff upon demand, after the attachment was dissolved. This shows a liability against him. But there is nothing to connect him with the acts of defendant Sump in causing the writ to be issued, and the writ was a protection to the officer, in so far as he acted in obedience to it. Gunz v. Heffner, 33 Minn. 215,22 N. W. Rep. 386. And, to make a case against the defendant Sump, it should appear by proper averment, not merely that the affidavit for the attachment was false, but that he caused the writ to issue maliciously, and without probable cause. 2 Greenl. Ev. § 454; Given v. Webb, 7 Rob. (N. Y.) 65; Cochrane v. Quackenbush, 29 Minn. 378, 13 N. W. Rep. 154; Bliss. Code Pl. (2d Ed.) § 287. Malice, in such cases, is an issuable fact to be pleaded. In this case, however, the plaintiff alleges that the affidavit for the attachment was wholly false in every particular, and that the defendant Sump knew it to be so when he made it....