Cooper v. Scyoc

• Decision Date: 16 February 1904
• Citation: 79 S.W. 751,104 Mo. App. 414
• Parties: COOPER v. SCYOC.
• Court: Missouri Court of Appeals

79 S.W. 751

104 Mo. App. 414

COOPER v. SCYOC.

St. Louis Court of Appeals. Missouri.

February 16, 1904.

ABUSE OF PROCESS—SUCCESSIVE GARNISHMENTS — MALICIOUS ISSUANCE — EXEMPT WAGES—ACTIONS—PUNITIVE DAMAGES—PARTIES —SEVERAL LIABILITY—INSTRUCTIONS.

1. Where a judgment creditor maliciously procured successive garnishments to be served attaching plaintiff's exempt earnings, knowing them to be exempt, to harass plaintiff's employer in an endeavor to compel payment out of plaintiff's exempt wages in order to avoid a discharge, and plaintiff was finally discharged by reason thereof, such creditor was liable for malicious abuse of process.

2. It was no defense that the creditor had a legal right to the issuance of an execution on his judgment, and that costs had been taxed against him on such executions.

3. Under Rev. St. 1899, § 4042, providing that garnishees on an execution issued by a justice "shall be summoned in writing as garnishees," etc., where garnishment summonses issued and served conformed to such provision, the constable's return thereon, and not his indorsement thereof on the execution, constituted the original evidence of the fact of service of the garnishment.

4. Rev. St. 1899, § 3435, provides that no person shall be charged as garnishee for wages due from him to a defendant in his employ for the last 30 days' service, provided such employé is the head of a family and a resident of the state; and section 3162, declares that each head of a family, at his election, in lieu of the property mentioned as exempt in previous sections, may select and hold exempt any property or wages not exceeding in value the amount of $300. Held, that where, at the time of the issuance of successive garnishments against a debtor's employer, the debtor was a resident of the state, the head of a family, and had not waived his right to exemption, but had furnished the constable with a sworn schedule showing that his personal effects and wages did not at any time exceed $300, the creditor had no right to garnish the debtor's employer to recover wages earned within 30 days.

5. Where, in an action for malicious abuse of process, instructions, after authorizing the jury to award plaintiff compensatory damages, charged that, in addition thereto, the jury might allow such further sum by way of exemplary damages, not exceeding a certain sum, as, in their opinion, would sufficiently punish defendant for the wrong and injury done to plaintiff, such instructions were not objectionable as directing the jury to find punitive damages.

6. Where a creditor, by the malicious issuance of successive garnishments against his debtor's employer, procured the debtor's discharge, the debtor could not recover for loss of time after he was discharged by reason of his inability to find other employment.

7. Where a creditor maliciously caused several garnishments to be issued against his debtor's employer in order to compel payment of exempt wages or induce the debtor's discharge, and all the acts of the constable in serving such garnishments, etc., were done under the express directions of the creditor, the creditor and the constable were jointly and severally liable for the wrongful acts of the officer.

Appeal from Hannibal Court of Common Pleas; David H. Eby, Judge.

Action by Charles F. Cooper against David R. Scyoc. From a judgment in favor of plaintiff, defendant appeals. Affirmed on condition.

R. F. Roy and E. W. Nelson, for appellant. F. L. Schofield and Geo. W. Whitecotton, for respondent.

Statement.

BLAND, P. J.

On June 15, 1899, defendant herein recovered a judgment of $14.20 debt and $10.80 costs against plaintiff herein before D. S. Scott, a justice of the peace of Mason township, in Marion county, Mo. On the same day an execution, returnable in 90 days, was issued on said judgment, and delivered to the constable of Mason township. The execution was served on Cooper, the defendant therein, but was not satisfied, and was renewed by the justice of the peace on September 13, 1899, again on December 12, 1899, again on March 12, 1900, and on June 14, 1900, was returned wholly unsatisfied, no goods or chattels of defendant having been found whereon to levy the same. On the 4th day of December, 1900, by order of Scyoc, an alias execution returnable in 90 days was issued on the judgment, and delivered to the constable of Mason township. This alias execution was renewed every 90 days thereafter down to the day of the filing of the petition herein (February 24, 1902) and was in the hands of the constable when this suit was commenced. The suit is to recover actual and punitive damages for alleged malicious abuse of judicial process issued and renewed on the judgment of June 15, 1899, and is in two counts. The first count is for alleged malicious abuse of process by the steps that were taken by the constable and the plaintiff on the first execution and the several renewals thereof. The second count is for malicious abuse of the process under the alias execution and the several renewals thereof. The answer was a general denial. The evidence is that Cooper, the plaintiff, was a mechanic, and was, when the judgment before the justice of the peace was rendered, in the employ of the Hannibal & St. Joseph Railroad Company (lately taken in by the Burlington Railroad Company), and worked in the shops of said company at Hannibal, Mo., and continued to work therein until he was subsequently discharged by the Burlington Railroad Company. The average of his wages was about $52 per month. He had a wife and four children, and a dwelling house, in which he lived with his family, mortgaged for all it was worth. He was possessed of considerably less than $300 in personal property, and depended solely upon his wages for the support of himself and family. Under the rules of the railroad company its employés were paid from the 11th to the 16th of each month for the prior month's earnings, so that the railroad company, after the first month's employment, retained in its possession or kept back two weeks' wages of its employés. This rule was observed in making payments to Cooper while he was in the employ of the companies. When the constable served the original execution on Cooper, he claimed his right of exemption, and furnished the constable with a sworn schedule of his property and the value thereof, showing that it was worth considerably less than $300. By direction of Scyoc, the constable garnished the railroad company. The fact of the service of garnishment was not at any time indorsed on the execution, and for this reason defendant objected to any evidence tending to show that the railroad company had been garnished. This objection was overruled by the court, to which ruling the defendant objected and excepted. That this matter may be fully understood, we will set out in full what was done under the defendant's orders to the constable to garnish the railroad company. The following notice or summons of garnishment was first read in evidence.

"D. R. Scyoc, Plaintiff, v. C. F. Cooper, Defendant. Attachment before D. S. Scott, Justice of the Peace, Mason Township, Marion Co., Mo. To the Hannibal & St. Joseph Railroad Co., Garnishee: You are notified that I attach, in your hands, as the property and effects of said C. F. Cooper, the defendant in the above entitled cause, all the debts due from you to the said defendant, or so much thereof as shall be sufficient to satisfy the debts and interest or damages and costs in the above entitled action. And also that I do attach, in your hands, all goods and chattels, money or evidence of debt, belonging to and being the property of said defendant, C. F. Cooper. And to be and appear before D. S. Scott, a Justice of the Peace within and for the Township of Mason, in the County of Marion, at his office in said township, on the 18th day of July, 1899, at seven o'clock A. M., then and there to answer such interrogatories as may be put to you by said justice. This 10th day of July, 1899. [Signed] F. K. Green, Constable of Mason Township."

On the back of this notice or summons was indorsed the following return, also read in evidence:

"I hereby certify that I delivered a true copy of the within summons to H. M. Kerr, the General Agent of the H. & St. J. R. R. Co., at Hannibal, on the tenth day of July, 1899, in the City of Hannibal, County of Marion and State of Missouri. F. K. Green, Constable."

The garnishee appeared before the justice and made the following answer, which was offered in evidence:

"D. R. Scyoc, Plaintiff, v. The Hannibal & St. Joe R. R. Co., Garnishee of C. F. Cooper, Defendant. Now comes the above-named railroad company, garnishee herein, and for its answer states: (1) That at the time of the service of the garnishment upon it herein it did not have, has not since had, nor has it now, in its possession or under its control any property, money, or effects of the said defendant, except as herein stated. (2) That at the time of the service of the garnishment upon it herein it did not owe the said defendant any money, nor does it owe him any money now, except as herein stated. (3) That this garnishee owes and is indebted to the aforesaid defendant in the total sum of thirty-six dollars and forty cents ($36.40), which said sum is wages earned by said defendant while in its employ, and is now due and unpaid. (4) That of the aforesaid amount of money so due and owing to defendant all thereof, to wit, the sum of thirty-six dollars and forty cents, is due from this garnishee to defendant as and on account of wages earned by the defendant for and during the last thirty days' service in the employ of this garnishee. That said employé (the defendant herein) is the head of a family and a resident of the state of Missouri, and that, therefore, by virtue of the provisions of section No. 5220 of the Revised Statutes of Mo., 1889, this garnishee is not in the cause chargeable as garnishee on account of said...