Fishburne v. Engledove.1

• Decision Date: 27 June 1895
• Parties: FISHBURNE et al. v. ENGLEDOVE.1
• Court: Virginia Supreme Court

22 S.E. 354

91 Va. 548

FISHBURNE et al.

v.ENGLEDOVE.¹

Supreme Court of Appeals of Virginia.

June 27, 1895.

Distress Warrant—Action for Wrongful Levy —Damages—Judgment as Evidence.

1. In order that a judgment may be evidence against a party in another suit upon a different cause of action, it must he rendered in a proceeding between the same parties or their privies, and the point must be involved in both cases, and must have been determined upon its merits.

2. In an action for damages occasioned by taking out a distress warrant against the plaintiff for rent due in March, 1891, judgment between the same parties in an action of unlawful detainer, rendered in November, 1890, is no evidence as to whether rent was due at the date of said warrant.

3. Where a trespass is committed without fraud, malice, or oppression, or other special aggravation, only compensatory damages can be given.

4. In an action under Code 1887, § 2898. for damages on account of an illegal distress for rent, the declaration alleged that defendant levied on $975 of goods to satisfy a claim for rent amounting to $400, and that in fact there was no rent due, and that through the taking of the property, plaintiff incurred expense and had been deprived of great gains in his business, and had suffered heavy losses therein. Held that, there being no allegation showing circumstances of aggravation, only compensatory damages could lie recovered.

5. Authority giveD to an agent to receive tenants for a building, receive rents, and to make contracts for repairs and insurance does not authorize him to have a distress warrant levied on a lessee's property.

Error to circuit court of city of Roanoke; Dupuy, Judge.

The plaintiff below secured a verdict and judgment against the defendants, to which they bring error. Reversed.

Penn & Cocke, Scott & Staples, and Smith & King, for plaintiffs in error.

Griffin & Glasgow, for defendant in error.

BUCHANAN, J. The defendant in error brought an action of trespass on the case against the plaintiffs in error in the circuit court of the city of Roanoke, to recover damages from them on the ground that they had sued out a distress warrant and had it levied upon his property for rent alleged to be due, when in fact there was no rent due and in arrears. Upon a trial of the cause, judgment was rendered in favor of the plaintiff for $4,000. To that judgment the defendants obtained a writ of error, which is now to be disposed of.

Many errors are assigned to the action of the trial court, but in the view we take of the case it will be unnecessary for us to dispose of all of them in detail.

The first assignment of error is that the trial court erred in admitting in evidence the records in the action of unlawful detainer brought for the recovery of the leased premises, for the rent of which the distress warrant was sued out. The parties to the writs of unlawful detainer and the parties to the action of trespass were the same. The records in the unlawful detainer cases were objected to when offered in evidence, but the objections were overruled and the records admitted. Afterwards the court instructed the jury that they could not consider these records as evidence in fixing the damages in the case, but that they could consider them in determining the question whether or not any rent was due when the distress warrant was levied. Admitting, as is contended by the counsel of the defendant in error, that the question whether or not any rent was due at the time each of the actions of unlawful detainer was instituted was in issue in those cases, still those records were inadmissible as evidence in this case.

In order that a judgment may be evidence against a party in another suit upon a different cause of action, it must be rendered in a proceeding between the same parties or their privies, and the point must be involved in both cases, and must have been determined upon its merits. If the first action is disposed of upon any ground that does not go to its merits, the judgment rendered will not conclude the party. 7 Rob. Prac. 190; Bigelow, Estop. 38, 39; Black, Judgm. §§ 504-506.

The first of these actions of unlawful detainer was instituted in December 1890. The distress warrant was taken out in March, 1891. Although the parties do not agree as to the terms of the lease, there is no question that it was for at least one year, beginning in June, 1890, and that the rent was payable monthly in advance. The determination of the unlawful detainer case brought in December, 1890, admitting that the question whether or not any rent was then due was involved in that case, could not possibly determine or be evidence as to the the question whether or not any rent was due in March, 1891, nearly three months afterwards, when by the terms of the lease the rents became due monthly during that period.

The second action of unlawful detainer was instituted in May, 1891, and was dismissed before the appearance of the defendants. There was no disposition of it upon its merits. By it nothing was determined or concluded between the parties. These records were therefore clearly inadmissible in evidence for the purpose for which the court allowed them to be introduced, or for any other purpose, and for such error the judgment complained of will have to be reversed.

Another assignment of error is that the damages assessed by the jury were excessive.

The determination of that question will require an examination of the declaration and the character of the damages that could be proved under it

The action brought was not for maliciously taking out a distress warrant without probable cause, and having it levied upon the plaintiff's property when there was no rent due, but it was sued out under section 2898 of the Code, which provides that: "If property be distrained for any rent not due, or attached for any rent not accruing, or taken under any attachment sued out without good cause, the owner of such property may, in an action against the party suing out the warrant of distress or attachment recover damages for the wrongful seizure, and also if the property be sold, for the sale thereof."

The declaration alleges that the rent claimed to be due,...