Moody v. Deutsch

• Decision Date: 31 October 1884
• Parties: MOODY et al., Plaintiffs in Error, v. DEUTSCH et al.
• Court: Missouri Supreme Court

85 Mo. 237

MOODY et al., Plaintiffs in Error,

v.DEUTSCH et al.

Supreme Court of Missouri.

October Term, 1884.

Error to Johnson Circuit Court.--HON. N. M. GIVAN, Judge.

REVERSED.

S. P. Sparks for plaintiffs in error.

(1) The court erred in instructing the jury that upon the evidence plaintiffs could not recover. It is held to be error so to instruct where there is a scintilla of testimony. There was testimony tending to establish a want of probable cause, as well as a bad and malicious motive, in suing out and prosecuting the attachment. Alexander v. Harrison, 38 Mo. 266; Routsong v. R. R., 45 Mo. 236; Hays v. Bell, 16 Mo. 496; Emerson v. Sturgeon, 18 Mo. 170; Rippey v. Freide, 26 Mo. 523; Bowen v. Lazerle, 44 Mo. 383; McFarland v. Bellows,49 Mo. 311. The evidence tended strongly to show that Deutsch's motive in suing out the attachment was to destroy plaintiffs' business, and for this an action would lie. Drake on Attachment, sec. 733. The testimony was uncontradicted that plaintiffs only owed defendant, Deutsch, one hundred and forty-eight or one hundred and fifty dollars, and that the amount had been tendered to his attorney the evening before the attachment. The attachment was for the sum of three hundred and eighteen dollars, and goods to the value of seven hundred dollars were seized. In such cases an action will lie in favor of the injured party. Alexander v. Harrison, 38 Mo. 258; Cooley on Torts, 189; Sommer v. Hith, 4 S. & R. 19; Churchill v. Siggers, 3 El. & Bl. 929; Holliday v. Sterling, 62 Mo. 321; Drake on Attach., sec. 733 (Ed. 1878). An abuse of the process of law is evidence of malice and want of probable cause. Prough v. Entriken, 11 Pa. St. 81; Page v. Cushing, 38 Me. 523; Gallaway v. Burr, 32 Mich. 335; Seeber v. Price, 26 Mich. 518. (2) In suit for malicious attachment, malice need not be expressly proved, but may be inferred from want of probable cause, and notwithstanding proof of probable cause, if, from bad or malicious motives, oppressive and vexatious litigation is carried on, the action for damages will lie. Walser v. Thies, 56 Mo. 89; Sharpe v. Johnson, 76 Mo. 660. (3) Although the affidavit for the attachment was made by defendant's attorney, his appeal from the action of the court, quashing the writ to the Supreme Court, was evidence of his assent to the act. Perrin v. Claflin, 11 Mo. 13; Canifax v. Chapman, 7 Mo. 175; Page v. Freeman, 19 Mo. 421. The defendant, Loebenstein, by signing the attachment bond, became equally liable with defendant, Deutsch. Wetzel v. Walters, 18 Mo. 396. (4) In actions for malicious attachment, the injury to plaintiff's business, and counsel fees, are proper elements of damage. Drake on Attachments, sec. 745; 2 Greenleaf on Evidence, sec. 456; Walser v. Thies, supra; 3 Sutherland on Damages, 705.

O. L. Houts and S. T. White for defendants in error.

(1) The petition does not state that there was no probable cause for issuing the attachment, and hence set out no cause of action. Want of probable cause is the gist of the action. 2 Addison on Torts (Wood's Ed.) sec. 859, et seq. (2) There was no lawful jurisdiction over Deutsch, since there was no proof that Loebenstein was connected with Deutsch, or his attorneys, in issuing the attachment, further than becoming bondsman, and Deutsch was served with process beyond the jurisdiction of the court. Fithian v. Monk, 43 Mo. 502; Latimer v. Ry., 11 Mo. 105; Capital Bk. v. Knox, 47 Mo. 333; Brandenburger v. Easley, 78 Mo. 659; Graham v. Ringo, 67 Mo. 324. (3) There was no evidence tending to show that there was either malice or want of probable cause in issuing the attachment. The evidence shows that Deutsch had nothing to do with it, and entrusted the whole matter to the discretion of his attorney, who made the affidavit for him, and caused the writ to issue. The fraudulent mortgage on the stock of goods admitted by plaintiff, clearly came within the statute providing for attachments. R. S. 1879, sec. 398, subdivision 7. It was simply a question of law whether an attachment would issue against a married woman's separate estate. This court had not passed upon this question, but the court of appeals had decided in its favor. Frank v. Siegel, 9 Mo. App. 467. While the trial court decided against the court of appeals, that authority gave the attorney a reasonable belief that it would sustain the attachment. (4) Advice of counsel protects Deutsch against liability. In this case the attorney made whole investigation and acted upon his own judgment. Alexander v. Harrison, 38 Mo. 258, and authorities cited. Also plaintiff's authorities. (5) There is no judgment in the lower court which is the subject of review in this court. Boggess v. Cox, 48 Mo. 278. In case cited, the form of judgment is almost in the exact words as the one at bar, and this court held that it was not a final judgment, and review of it could not be had in this court.

EWING, C.

This is a suit for damages against the defendants for malicious attachment of the property of the plaintiff, Nancy I. Moody. The petition alleges that the defendant, Deutsch, unlawfully and maliciously caused a writ of attachment to be issued and levied upon said Nancy Moody's property, which, upon appeal to this court, was dismissed; that by reason of the attachment plaintiff is damaged, etc.

The answer of Loebenstein was a general denial. That of Deutsch was as follows: “Now comes the defendant, Louis Deutsch, and for plea to the jurisdiction and to the merits, by way of answer, states that this court has no jurisdiction over his person in this action, and this action should abate, because the facts are that plaintiffs are residents of Johnson county, Missouri, and that this defendant is a resident of Pettis county, Missouri, and that the writ was served in this case upon him, summoning him into this court, in this cause, in the county of Pettis, state of Missouri. Defendant further alleges that his co-defendant, B. Loebenstein, was joined with him in this action, fraudulently and wrongfully, and for the sole purpose of annoying this defendant by obtaining service upon the said Loebenstein, in Johnson county, Missouri, and thus giving a show and appearance of jurisdiction to this court, whereas, in truth and in fact, these plaintiffs have no cause of action against said B. Loebenstein, jointly, with this defendant, or any cause why they should be jointly charged. Defendant says this action should abate as to him. Because of these facts, said defendant further answering, denies each and every allegation set out in plaintiffs' petition.”

The evidence was, in substance, that Mrs. Moody was in the liquor and grocery business in Warrensburg; that in September, 1880, the sheriff attached her stock of goods on a writ issued in the case of Deutsch against her; that the value of the goods served was one thousand dollars; that the debt sued for was three hundred and eighteen dollars; that Mrs. Moody's son, who was acting as her agent, told Deutsch's attorney, before the goods were seized, that his mother only owed one hundred and forty-eight or one hundred and fifty dollars, and offered to pay that; that he told the sheriff not to move the liquors until he could put the barrels in proper condition; that the bung holes were open and the liquor leaking; that the sheriff would not heed him, but threatened to arrest him; that her credit was good before the attachment, but it was not afterwards, and that it broke her up and she quit the business; that she got back a part of the goods the next summer in a wasted and damaged condition, after Mr. Deutsch had dismissed his attachment suit. There was also evidence showing the commencement and proceedings in the attachment suit, which was appealed to this court, and on motion here dismissed.

Upon the close of the evidence, the court below, at the instance of the defendant, gave the following instruction:

“The court instructs the jury that there is no evidence upon which plaintiffs can recover in this action.”

The plaintiff then took a non-suit with leave to move to set it aside, which motion, being overruled, the case comes here on a writ of error.

I. The defendant insists that the petition is defective and does not state a cause of action, because it does not allege there was no probable cause for suing out the attachment. An action may be maintained for the malicious institution of a civil suit by attachment if the suit is commenced maliciously, and without probable cause, and shall terminate before the commencement of the action for damages. Sharpe v. Johnston, 76 Mo. 660; Cooley on Torts, 187, and authorities cited in note 5; Drake on Attachments, sec. 726. It is held everywhere to be necessary to aver want of reasonable or probable cause. Dimmack v. Bowley, 26 L. J. (C. P. N. S.) 231; Cooley on Torts, 180, 181; 2 Chitty Pl. 550. “The absence of reasonable or probable cause must be alleged.” In Given v. Webb, 30 N. Y. (7 Rob.) 65, the action was for malicious prosecution; a demurrer to the complaint “in that it omits to aver that the prosecutions were without probable cause.” The court say: I understand the law to be well settled that, in order to maintain an action for malicious prosecution, the plaintiff must, in addition to other matters, establish a want of probable cause (5 Duer, 304), and it is equally well settled that every fact which the plaintiff must prove, to enable him to maintain his action, and which the defendant has a right to controvert in his answer, must be distinctly averred or stated in the complaint. It follows from these principles that the averment of want of probable cause is a necessary allegation to be contained in a complaint for malicious prosecution.” In that case the petition contained this averment: “Maliciously intending to injure the plaintiff, caused to be made a false and malicious affidavit;” and it was insisted that that included an averment of want of probable cause. But it was held that, “although...