Murphree v. Anderson

• Decision Date: 09 May 1914
• Docket Number: 18,840
• Citation: 92 Kan. 370,140 P. 880
• Parties: J. A. MURPHREE, Appellee, v. W. O. ANDERSON et al., Partners, etc., Appellants
• Court: Kansas Supreme Court

140 P. 880

92 Kan. 370

J. A. MURPHREE, Appellee, v. W. O. ANDERSON et al., Partners, etc., Appellants

No. 18,840

Supreme Court of Kansas

May 9, 1914

Decided January, 1914.

Appeal from Shawnee district court, division No. 1; ALSTON W. DANA judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ESTOPPEL -- Facts Occurring after Former Judgment -- Not Adjudicated. A judgment is not an estoppel as to facts which did not occur until after the judgment was rendered and which were not involved in the former action, notwithstanding references were made in the pleadings in that action to matters not involved therein.

2. MALICIOUS ATTACHMENT--Damages--Res Judicata--No Adjudication of Facts in Issue in a Former Action. Plaintiff sued to recover damages for the malicious attachment of his property. The answer pleaded a former judgment in an action wherein plaintiff sued one of the same defendants for false arrest and imprisonment. In the petition in the former action he alleged facts with respect to the attachment of his property for the purpose of showing malice in causing his arrest and imprisonment. When the first case was tried the attachment case was still pending, and it had not then been determined that the attachment was wrongful. Held, that the trial court properly took from the jury the question of the former judgment on the ground that damages for the malicious attachment could not have been adjudicated in the former action.

3. SAME--Question of Fact--Decided by Court--Not Prejudicial Error. In an action to recover damages for the malicious attachment of plaintiff's property the defendant pleaded the former judgment, in which the attachment was dissolved, and alleged that the plaintiff, as defendant in that action, had set up a counterclaim for the same damages. The trial court ruled as a matter of law that plaintiff was not by reason of the allegations of his answer in the attachment case estopped from asserting his claim. The question being one of fact, should have been submitted to the jury; but, since all the evidence was to the effect that none of the issues were in fact adjudicated in the former action, and no serious contention being now made to the contrary, the error will not be regarded as prejudicial.

4. SAME--Damages--Attorney's Fee--Competent Evidence. In an action to recover damages, including attorney's fees for defending a malicious attachment, the plaintiff, who was a farmer, was permitted to testify to the value of his attorney's services in defending the attachment case. Held, not error.

Z. T. Hazen, R. H. Gaw, and Charles Curtis, all of Topeka, for the appellants.

W. A. S. Bird, of Topeka, for the appellee.

OPINION

PORTER, J.

The plaintiff sued the defendants for damages, alleging that maliciously and without any probable cause they commenced a civil action against him and attached and sold his property. The action is one of a series of lawsuits in which the parties have been involved and which include three civil suits and one criminal action. The defendants are commission merchants dealing in fruit and farm produce in the city of Topeka. The plaintiff is a farmer, and in 1909 was a resident of Oklahoma, where he was engaged in shipping watermelons raised by him on his farm. He brought a carload of melons to Topeka, and the defendants claimed that he contracted to sell it to them, but that he sold to some one else, in violation of his contract. On August 9, 1909, he came to Topeka with another carload of melons, which he sold to a retail merchant of the city. While engaged in delivering a wagon-load of them, T. E. Armstrong, one of the defendants, and some other commission men of the city had one of their number purchase a single watermelon from him for twenty-five cents, and as soon as the transaction was completed caused him to be arrested by a policeman and confined in the city jail, charged with peddling merchandise without a license in violation of a city ordinance. While imprisoned and a stranger in a strange land, he was sued by the defendants in the district court of Shawnee county to recover $ 160 damages for breach of the alleged contract for the sale of the first car of melons, and an attachment was levied on the second carload of melons. Soon after the attachment was levied the melons were sold at public auction and brought $ 25, although they were worth about $ 100.

The plaintiff employed an attorney, who succeeded in having him acquitted on the charge of violating the city ordinances, and he was discharged. He at once brought suit in the circuit court of the United States for the district of Kansas against T. E. Armstrong and the other commission merchants who were charged with being in the conspiracy, in which action he sought to recover damages in the sum of over $ 15,000 for false arrest and imprisonment. That case was tried, and he recovered a judgment against Armstrong and the other defendants in the sum of $ 400. Subsequently the attachment case came on for trial in the district court of Shawnee county and he recovered a judgment for costs, having proved that he was not indebted in any manner to Anderson and Armstrong. The only ground for attachment was that he was a nonresident of the state, and defeating the cause of action resulted in the dissolution of the attachment. He thereupon brought this action to recover for loss of time, traveling expenses, hotel bills and attorney's fees in defending the attachment case. The jury returned a verdict awarding him damages in the sum of $ 403.65. The court overruled a motion for a new trial and rendered judgment on the verdict, from which the defendants have appealed.

The principal defense set up in the answer was that the matters involved in this action are res judicata, because substantially the same averments were made in the action in the federal court with respect to the commencement of the attachment suit and the expenses and damages which the plaintiff claims to have suffered thereby. The answer set up a copy of part of the pleadings in the action in the federal court. There are several reasons why we think the plea of res judicata can not be sustained. The parties are not identical. Anderson, who is a defendant here, was not a party to the action in the federal court. When that case was tried the attachment case in the district court of Shawnee county was still pending, and of course the plaintiff could not recover damages for the wrongful attachment of his property, because it had not then been determined that the attachment was wrongfully brought. It is true there is much similarity in the statement of facts in both petitions. In the ...