Carel v. Haedecke

• Decision Date: 21 November 1913
• Docket Number: 18,296 - (93)
• Citation: 143 N.W. 1124,123 Minn. 435
• Parties: GEORGE CAREL v. AUGUST HAEDECKE and Others
• Court: Minnesota Supreme Court

143 N.W. 1124

123 Minn. 435

GEORGE CAREL v. AUGUST HAEDECKE and Others

Nos. 18,296 - (93)

Supreme Court of Minnesota

November 21, 1913

Action in the district court for Dakota county against August Haedecke, Frank C. Palon, Sarah Babb and J. C. Jamison to recover $500. The answer alleged that in November, 1910 plaintiff was indebted to defendant Babb in the sum of $75 that defendant Babb authorized defendant Haedecke to collect from plaintiff the amount due; that a suit was instituted in the name of defendant Babb against plaintiff and that thereafter the suit was dismissed on technical grounds. The case was tried before Hodgson, J., who denied separate motions to dismiss the action against the defendants and a jury which returned a verdict for $200 in favor of plaintiff. From an order granting a new trial, plaintiff appealed. Affirmed.

SYLLABUS

Evidence inadmissible.

In an action for maliciously suing out a writ of attachment and levying upon exempt property, it was error to receive in evidence a part of the record in a subsequent suit between the plaintiff and one of the defendants where the plaintiff recovered damages for the breach of a contract, which breach existed at the time of the suing out of the attachment, and might have been used as a counterclaim; and the court properly granted a new trial because of such error.

C. P. Carpenter, for appellant.

R. D. Barrett, for respondents.

OPINION

DIBELL, C.

This action was brought by the plaintiff to recover damages for what he terms abuse of process and trespass. The verdict was for $200 in his favor. The court granted a new trial. He appeals.

On November 25, 1910, the defendant Babb commenced an action against the plaintiff in a justice court in Dakota county, and caused an attachment to issue. No affidavit for attachment was filed. The justice, one of the defendants, was without jurisdiction. He directed service of the attachment to be made by the defendant Palon upon specific exempt property of the plaintiff, and it was so levied. He was not a constable of the county and no showing such as is required by R.L. 1905, § 3897, justifying a service by him, was made. The defendant Haedecke was the agent of the plaintiff in instituting and conducting the proceeding.

In 1912, an action brought by the plaintiff against the defendant Babb to recover damages for the breach of a contract entered into in August, 1910, whereby the plaintiff was to cultivate and till the farm of the...