Miller v. Beck

• Decision Date: 24 May 1899
• Citation: Miller v. Beck, 108 Iowa 575, 79 N.W. 344 (Iowa 1899)
• Parties: MILLER v. BECK ET AL.
• Court: Iowa Supreme Court

108 Iowa 575

79 N.W. 344

MILLER

v.BECK ET AL.

Supreme Court of Iowa.

May 24, 1899.

Robinson, C. J., dissenting.

Appeal from district court, Pottawattamie county; Walter I. Smith, Judge.

Action at law upon an attachment bond to recover damages for the alleged wrongful suing out of an attachment. Defense, a general denial, and an affirmative plea to the effect that the damages claimed by plaintiff have been paid by the recovery of judgment for the identical items claimed in this case in an action wherein plaintiff recovered upon an attachment bond against other attaching creditors. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendants appeal. Reversed.Sims & Bainbridge, for appellants.

Harl & McCabe, for appellee.

DEEMER, J.

It appears from the evidence that F. Beck & Co. and a co-partnership styled Shaber, Reinthal & Co. were creditors of Peter C. Miller. Apprehensive of their claims, they placed them in the hands of appellants' counsel, who brought actions upon the separate accounts, each of which was aided by attachment, and directed the sheriff to levy upon certain property belonging to Miller. The writs were issued at the same time, but the sheriff, by direction of counsel, made levy of the Beck & Co. writ first. The other writ, in so far as the personal property is concerned, was levied subject to the one issued in the Beck & Co. case. The personal property was sold as perishable for the sum of $520, all of which, save the sum of $31, applied on rent, was paid into court. Beck & Co. obtained judgment in their action against Miller, and received in part satisfaction thereof the sum deposited in court, as well as some other money obtained through garnishment proceedings, in all the sum of $560.53. Shaber, Reinthal & Co.'s claim was upon notes amounting to $500, which were admitted by Miller. Miller made defense to their action, and pleaded a counterclaim for the wrongful suing out of the writ. The items of damages which he claimed in that case were identical with those sought to be recovered in this. That case went to trial, resulting in a verdict and judgment for defendant, Miller, and it thus appears that he was allowed $500 for the wrongful suing out of the writ. This amount he has received in full; for the claim against him, to the amount of $500, has been satisfied and discharged. The costs and attorney fees taxed for the wrongful suing out of the writ have also been paid.

Appellants' contention on this appeal is (1) that plaintiff has once been paid all damages growing out of the alleged wrongful suing out of the attachment, and therefore cannot recover them a second time; (2) that the plaintiffs in the two attachment suits were joint wrongdoers, and that the judgment in the Shaber, Reinthal & Co. case was a release and satisfaction of all claims against either.

It is familiar doctrine that a person injured by an act of joint wrongdoers is entitled to but one satisfaction for the injury sustained, and that, although all the wrongdoers are jointly and severally liable, complete satisfaction by one operates as a discharge of all. Turner v. Hitchcock, 20 Iowa, 310;Seither v. Traction Co., 125 Pa. St. 397, 17 Atl. 338, 11 Am. St. Rep. 905, and note. This is upon the theory that each is liable for the entire wrong, and that recovery from one is for the full amount, and hence satisfaction as to one is satisfaction or release as to all. Even where this rule prevails, it is generally held that part payment of a claim for damages by one joint wrongdoer, if understood to be in part satisfaction, is not a release in full, but only pro tanto; and that if the apparent intention is not to release or discharge the debt, but to release only that one from liability, it is held to be a covenant not to sue, and the others remain liable. Ellis v. Esson, 50 Wis. 138, 6 N. W. 518;Chamberlin v. Murphy, 41 Vt. 110;Shaw v. Pratt, 22 Pick. 307; Cooley, Torts, p. 139; Couch v. Mills, 21 Wend. 424. It is also well settled that a person injured, whether by the joint or several wrongs of others, is not entitled to receive more than one satisfaction. As said by Miller, J., in Lovejoy v. Murray, 3 Wall. 1: “When plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected, in equity and good conscience, that the law will not permit him to recover again for the same damages.” In accordance with this rule, it has frequently been held that the validity and effect of a release of a cause of action does not depend upon the validity of the cause of action, and that if claim is made against one, and it is satisfied, all who may be liable are discharged, whether the one released was liable or not. Leddy v. Barney, 139 Mass. 397, 2 N. E. 107;Tompkins v. Railway Co. (Cal.) 4 Pac. 1166;Brown v. City of Cambridge, 3 Allen, 474;Butler v. Ashworth (Cal.) 43 Pac. 386;Metz v. Soule, 40 Iowa, 236.

It becomes material for us to inquire then, first, whether plaintiffs in the attachment suits were joint tort feasors; and, if they were not, then, second, whether appellee has received satisfaction for his injuries in the Shaber, Reinthal & Co. case. Now, while it is true that the writs were sued out at the same time. and plaintiffs in attachment were represented by the same counsel, yet neither creditor was interested in the success of the other, and neither attempted to aid the other in any manner. Each acted independent of the other, and for the purpose of securing his own claim. What each did was designed for his own interest, and the fact that they acted simultaneously, through the same attorneys and for the same reasons, did not make their acts joint. Brewster v. Gauss, 37 Mo. 518. This is not a case in which a single object is accomplished by the simultaneous service of different writs, as was Stone v. Dickinson, 5 Allen, 29. We are of opinion that the creditors in this case were not joint wrongdoers, and that a release or satisfaction as to one would not necessarily discharge the other. If there was such release or discharge, it was because plaintiff has received satisfaction for the wrong done him by accepting a verdict and judgment in the Shaber, Reinthal & Co. case; and to this we now turn our attention.

In his counterclaim for damages, as well as in this action, he sued for conversion of his personal property, and for the damages incident thereto; claiming in each pleading that his property had been taken, used, and converted by that particular attaching creditor. If this action was trover or conversion, then it is clear that he cannot have payment for his property twice. The rule is well settled that, upon payment of a judgment for conversion, if not before, the title to the property passes to the judgment defendant, and plaintiff cannot again sue for conversion of the identical property, for the plain reason that he cannot give title, and has no longer any interest in the property; for his right thereto has passed to the first judgment defendant.

But it is said that appellee was asking for damages done his property in each suit, and that he is entitled to damages for what each defendant did. If he had asked in each suit for the damages done by that defendant against which his action was brought, there would be no doubt of his position. But such is not the fact. The writs were levied upon the same property, to wit, a stock of wall paper, moldings, etc., and the garnishments ran against the same debtor of Miller. They were levied at the same time, and the trespass resulted from but a single act of the sheriff, done under the two writs, it is true, but done at one time, and for the single purpose of turning the property into money, that it might be applied on whatever judgments were obtained. Now, in the Shaber, Reinthal & Co. case, appellee asked for all the damage done his property. The court instructed that he was entitled to all that was done, and, having accepted the results of that suit, he is presumed to have received all that he is entitled to claim, except it be some items which were peculiar to the second suit. The trial court, in the case at bar, instructed that appellee was entitled to the same and identical damages which he claimed in the Shaber, Reinthal & Co. case; but further said they should credit appellant with the amount allowed Miller in the former suit. It is of these instructions that appellant complains. It is perfectly plain, we think, that, if appellee was allowed and paid all the damages done his property upon his counterclaim in the Shaber, Reinthal & Co. case, he cannot recover the same items again, in a subsequent suit against appellants. He undoubtedly made claim in that case to all damages done his property. Shaber, Reinthal & Co. seemed content to pay all if they paid any, for they did not attempt to shift any part of the responsibility upon another. The court before which the action was pending said to the jury, in its charge, that they should allow all damages done the property, whether direct or consequential, and that ought to satisfy appellee, except as we have said as to certain items which were peculiar to this case. These are the costs of levying the writ, which were not paid in the former proceeding; and, second, attorney's fees for defending against this particular attachment. Attorney's fees are to be taxed by the court, however, and consequently were not referred to in the instructions in either case. It may be that the costs of levying the attachment were not allowed in the former action, but this we have no occasion to determine, for the reason that the instructions objected to include all other items of damages done to the property by the levy of the writ.

If it be conceded, however, that each attaching creditor was liable simply for the damage done by him, and that appellee in his counterclaim against Shaber, Reinthal & Co. did not seek to, and did not in fact, recover...