McIntosh v. Knox
| Decision Date | 04 June 1917 |
| Docket Number | 2226. |
| Citation | 165 P. 337,40 Nev. 403 |
| Parties | MCINTOSH ET AL. v. KNOX. |
| Court | Nevada Supreme Court |
Appeal from District Court, Nye County; Mark R. Averill, Judge.
Action by C. H. McIntosh and H. R. Cooke, doing business as McIntosh & Cooke, against Charles E. Knox. Judgment for plaintiffs and defendant appeals. Affirmed.
Hugh H Brown and J. H. Evans, both of Tonopah, for appellant.
H. R Cooke, of Tonopah, for respondents.
Respondents brought suit in the district court of Nye county to recover damages for the wrongful attachment of a judgment which had been assigned to them, and for attorney's fees expended in procuring the release of the funds thus attached. Judgment was rendered in the lower court in favor of respondents as prayed, and from such judgment and an order denying a new trial this appeal is taken.
We will not undertake to state all of the details of the case, but such facts only as will be necessary to a full understanding of the questions involved. R. P. Dunlap brought suit in the District Court of the United States for the District of Nevada to recover judgment against the Montana-Tonopah Mining Company, of which Knox was president, for quite a large sum and in due time recovered judgment. Thereafter the judgment was assigned by Dunlap to McIntosh & Cooke, who gave notice thereof to the judgment debtor, after which an appeal was taken by the company to the United States Circuit Court of Appeals, which later affirmed the judgment of the lower court. McIntosh & Cooke again gave notice to the company of the assignment, which was brought to the attention of Knox, after which, and before the judgment was paid, Knox brought suit in the United States District Court to recover judgment against Dunlap, who left the state before personal service was made upon him, and attached the judgment theretofore assigned by Dunlap to McIntosh & Cooke by causing garnishment papers to be served upon the Montana-Tonopah Mining Company, of which Knox was still the president. The Montana-Tonopah Mining Company filed in the United States District Court its bill of interpleader, alleging the matters hereinbefore stated, and prayed for an order allowing it to pay the money over to the clerk of the court, to be awarded to the person or persons finally found by the court to be entitled to it. Such an order was made, and the money was paid accordingly. McIntosh & Cooke and Knox appeared in the interpleader proceedings and filed their answers to the bill. On final hearing, the court awarded the money to McIntosh & Cooke.
The first contention made by counsel for appellant is that the court erred in rendering judgment in favor of the respondents for damages alleged to have been sustained by them by the wrongful garnishment of the judgment which had been assigned to them by Dunlap. On this point, counsel clearly state their theory in their brief, as follows:
"Under the great weight of authority, an action for damages, for wrongful attachment, must be grounded upon one of the three following premises: (1) There must be malice or want of probable cause; or (2) the action must be on the attachment bond; or (3) there must be some specific statutory authorization for the action."
We think the point would be well taken in a suit for damages by a defendant in an action wherein the property attached belonged to the party sued, but such is not the case here. McIntosh & Cooke were not parties to the attachment suit, but were strangers to it. The rule of law applicable to the situation here is laid down as follows:
"Where an officer levies a writ of attachment on the property of a stranger, attachment plaintiff is liable to the claimant of the ownership and right of possession thereof not only when he directed the wrongful levy, but also when he subsequently adopts or ratifies the officer's acts, independently of any bond, and jointly with the attaching officer." 4 Cyc. 764.
See, also, Peterson v. Foli, 67 Iowa, 402, 25 N.W. 677; Moores v. Winter, 67 Ark. 189, 53 S.W. 1057; Lee Merc. Co. v. Chapman, 9 Kan. App. 374, 58 P. 125; Blakely v. Smith, 16 Ky. Law Rep. 109, 26 S.W. 584; Knight v. Nelson, 117 Mass. 458; Perrin v. Claflin, 11 Mo. 13; Vaughn v. Fisher, 32 Mo.App. 29; Cole v. Edwards, 52 Neb. 711, 72 N.W. 1045; Dyett v. Hyman, 129 N.Y. 351, 29 N.E. 261, 26 Am. St. Rep. 533; Adams v. Savery House, 107 Wis. 109, 82 N.W. 703; Riethmann v. Godsman, 23 Colo. 202, 46 P. 684; Frick-Ried v. Hunter, 148 P. 83; Taylor v. Hines, 31 Mo.App. 622; Comly v. Fisher, Taney's Dec. (U. S.) 121; 6 C.J. p. 416, § 966.
May, 1917, issue of Case and Comment, on page 1023, calls attention to the note to the case of Davies v. Thompson (L. R. A. 1917B, 395); but, as that volume is not yet in our library, we have not been able to avail ourselves of the note in question.
But it is insisted that in view of the interpleader proceedings, which were instituted the day after the attachment suit was commenced, pursuant to which the money due under the judgment obtained by Dunlap was paid into court, the attachment proceedings were automatically terminated, and that they lost their force and effect, and consequently practically no damage was caused respondents by the conduct of appellant in instituting the attachment suit and in causing the levy thereunder. We cannot look at the matter in this light. In view of the departure from the state of Dunlap, no personal service of process was had upon him, and the jurisdiction of the court to inquire into the controversy depended upon the contention that property belonging to him was seized and held by the attachment proceedings. If it had been conceded by Knox in the main suit that the attachment had lost its efficacy, that case would have fallen, and the subsequent proceedings along with it; hence, it was of vital importance to Knox that the force and effect of the attachment proceedings be maintained, which he seems to have realized by his conduct in the interpleader suit. Consequently, we cannot escape the conclusion that in legal effect the attachment still held good.
There is one peculiar circumstance in this case. As we have said the writ of attachment in Knox v. Dunlap was served December 30, 1912, and the bill of interpleader was filed in the federal...
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