Hayes v. Union Mercantile Co.

• Decision Date: 15 December 1902
• Citation: 70 P. 975,27 Mont. 264
• Parties: HAYES v. UNION MERCANTILE CO. et al.
• Court: Montana Supreme Court

70 P. 975

27 Mont. 264

HAYES v. UNION MERCANTILE CO. et al.

Supreme Court of Montana

December 15, 1902

Appeal from district court, Lewis and Clarke county; S. H. McIntire Judge.

Action for wrongful attachment by Jerome D. Hayes against he Union Mercantile Company, Theodore Fuhrken, and Louis Hillebrecht. From a judgment against defendants Union Mercantile Company and Hillebrecht, they appeal. Reversed.

Carpenter & Carpenter and Walsh & Newman, for appellants.

T. J Walsh, for respondent.

MILBURN J.

This cause comes before us on appeal from the order denying a motion for a new trial and from the judgment. The respondent has interposed a motion to dismiss the appeal. The action was prosecuted by the plaintiff against the three defendants named, to recover for tort. The verdict was against all three of the defendants for $3,000. Judgment was taken and entered against the Union Mercantile Company and Louis Hillebrecht only, the court holding Fuhrken not liable. Two notices of intention to move for a new trial were served and filed,--one jointly by the Union Mercantile Company and Hillebrecht, and another by Fuhrken. They all, however, filed a single motion in writing for a new trial. This motion was overruled on condition that the plaintiff abate all except $1,000 of the sum awarded by the jury. This he did. The Union Mercantile Company and Hillebrecht appealed. Fuhrken, of course, did not. The notice of appeal, addressed to the proper parties is as follows: "You, and each of you, will please take notice that the defendant Union Mercantile Company and Louis Hillebrecht each hereby appeals to the supreme court of the state of Montana from the judgment made, given, and entered in the above-entitled cause on the 30th day of November, 1898, in favor of plaintiff, and against the defendants Union Mercantile Company and Louis Hillebrecht, and each of them, and modified by order of court made on the 15th day of April, 1899, and the stipulation or waiver filed by the plaintiff on the 25th day of April, 1899, and from the whole and every part of said judgment. And you, and each of you, will further take notice that the defendants Union Mercantile Company and Louis Hillebrecht each hereby appeals to the supreme court of the state of Montana for the order made, given, and entered in the above-entitled cause on the 25th day of April, 1899, overruling the motion of the defendant Union Mercantile Company and the defendant Louis Hillebrecht for a new trial in said cause, and from the whole and every part of said order." An undertaking in the sum of $300 was filed, conditioned, after reciting that the Union Mercantile Company and Hillebrecht are about to appeal to the supreme court, as follows: "Now, therefore, in consideration of the premises and of such appeal, etc.;" and the sureties promise "that the said appellants will pay all damages and costs which may be awarded against them, or either of them, on the appeal, or dismissal thereof." The motion to dismiss is upon two grounds: (1) That no undertaking on the appeal of the Union Mercantile Company has ever been filed, and the only undertaking on appeal herein is an undertaking reciting a joint appeal by the said Union Mercantile Company and Louis Hillebrecht, which and undertaking is conditioned upon the affairmance or dismissal of said joint appeal; and (2) that the notice of appear to have been served upon the defendant Fuhrken, it being assumed that he is an adverse party. Appellants, before the hearing of the motion to dismiss, each filed a good and sufficient undertaking, approved by the Chief Justice; they depending upon section 1740 of the Code of Civil Procedure. Excellent briefs bearing upon this motion have been filed and considered by this court.

As to the first ground of the motion: If damages and costs should be awarded against both of the appellants, and suit should be brought against the sureties on the undertaking, could there be a valid defense on the ground that the undertaking was void? We think not. It may be that the undertaking is insufficient, in that, if damages and costs should be awarded against only one of the appellants, or if the appeal as to one should be dismissed, suit could not be maintained on the undertaking, for the reason that the sureties did not undertake to respond in such a case, but only in case "the appeal" of the two appellants named in their undertaking should be dismissed, or in case damages and costs should be awarded against them. The undertaking speaks for itself. The sureties, if sued, could not aver and maintain that the Union Mercantile Company and Louis Hillebrecht had not appealed, as they in their undertaking state that they (the Union Mercantile Company and Louis Hillebrecht) were about to do. These parties did appeal, and it would be the very refinement of technicality in the construction of language to hold that the words "on the appeal," used in the undertaking in connection with the word "appellants," means, and can only mean, the appeal of one of the appellants. The language of the undertaking means that if the Union Mercantile Company and Louis Hillebrecht do appeal, and do not prevail, the sureties will see to it that the appellants pay the costs and damages, or that the sureties will pay them. If the undertaking is insufficient to cover the case of the failure of some one of the two appellants to prevail in its or his appeal,--and this point it is not necessary for us to decide,--then the fact that the appellants have severally filed new undertakings, as above stated, is sufficient to save them from an adverse ruling on the motion to dismiss on the first ground. Coleman v. Perry, 24 Mont. 237, 61 P. 129, with citations.

As to the second reason alleged why the appeal as to the Union Mercantile Company should be dismissed: The reason given is that Fuhrken is an adverse party, and no notice of appeal was served upon him. The appellants, the Union Mercantile Company and Louis Hillebrecht, amending the record, show service by affidavit of mailing a copy of the notice of appeal to Fuhrken at his correct post-office address, and further show that they, the said counsel, on the same day acknowledged service for Fuhrken as counsel for Fuhrken. If Fuhrken be adverse party, because he may be interested in seeing that the judgment be affirmed against the appellants, for that they may be compelled to pay without contribution from him as joint tort feasor, then counsel for the appellants could not accept service for their adversary, Fuhrken; and it would be proper and right to serve the notice by mail on him, as was done. It does not appear that he had any other counsel for record, or at all. Notice was given to Fuhrken.

The motion to dismiss is denied.

This action was commenced in March, 1898, for wrongfully and maliciously procuring, without probable cause, an attachment to be levied upon plaintiff's goods. It is alleged in the complaint that ever since 1890 the plaintiff has been, and at the time of the alleged grievance was, doing a wholesale and retail business in Lewis and Clarke county; that the defendant Union Mercantile Company was and is a corporation that on January 4, 1898, the said defendant corporation, by and through the defendants Hillebrecht and Fuhrken, officers thereof, commenced an action in the district court of Lewis and Clarke county against the plaintiff for $2,018.15 and costs, and sued out a writ of attachment; that defendants caused the writ of attachment; that defendants caused the writ to be executed by levying upon and seizing all of plaintiff's stock, of the value of $15,000, and reading possession thereof for two days; that no more than $250 was due to the defendant company, although plaintiff admits that he owed the full sum of $2,018.15; that if suit had been brought, and a writ of attachment issued only for what was due, to wit, $250, the plaintiff could and would have paid that amount and costs, and thus have avoided the attachment; that the defendants maliciously and purposely caused the levy for the amount of $2,018.15 in order to destroy the plaintiff was doing a prosperous business; and "that, by reason of the wrongful and unlawful acts of the said defendant Union Mercantile Company, plaintiff's trade and credit have been impaired and destroyed, and will be seriously injured for a long period in the future; that he has been finial cramped and distressed, to his damage in the sum of $10,000." The defendants answered, and denied all the material allegations of the plaintiff, except so far as, further answering, they admitted and averred that the debt of $2,018.15 was due at the time of the commencement of the suit and of the issuance of the writ of attachment; that, after stating the facts to legal counsel, and being by him advised that they had a good cause of action on the merits, they commenced the action, and the writ was issued and placed in the hands of the sheriff, with instructions to levy upon sufficient property to satisfy the claim and costs; that the sheriff on the said 4th day of January, after the close of the business of the defendant (plaintiff and respondent here), went to his store and told him of his possession of the writ, and was by respondent requested to forbear the removal of any goods, but to take possession, and he would settle; that thereupon the Union Mercantile Company and respondent agreed that the sheriff should not remove any goods from the store, but should remain nominally in possession, and respondent should continue his business without interruption; that immediately the respondent then applied to appellant Union Mercantile Company to settle the said action and all issues; that a full settlement was made in consideration of said appellant accepting...