Paddock-Hawley Iron Co. v. Rice

• Court: Missouri Supreme Court
• Writing for the Court: Marshall
• Citation: Paddock-Hawley Iron Co. v. Rice, 179 Mo. 480, 78 S.W. 634 (Mo. 1903)
• Decision Date: 23 December 1903
• Parties: PADDOCK-HAWLEY IRON CO. v. RICE et al.<SMALL><SUP>*</SUP></SMALL>

78 S.W. 634

179 Mo. 480

PADDOCK-HAWLEY IRON CO. v. RICE et al.^*

Supreme Court of Missouri, Division No. 1.

December 23, 1903.

JOINT TORT FEASORS—CONTRIBUTION—ILLEGAL ATTACHMENTS—RATIFICATION.

1. Plaintiff brought attachment, and levied on the goods of his debtor. Various other creditors of the debtor also levied attachments the same day. The actions were all brought by the same attorney, but none of the attaching creditors knew at the time their suits were brought of the other attachments; and plaintiff's representative acted for plaintiff alone, and without consultation or concert of action with any other creditor. Judgment was rendered for interpleader in the attachment. Thereafter he sued plaintiff, and recovered a judgment for the property attached, with costs and expenses. Held, that there was no such concert of action between the attaching creditors as to make them joint tort feasors, so that plaintiff could recover in an action for contribution from them for money paid in satisfaction of the judgment obtained against him by the interpleader.

2. Where several creditors brought individual attachment suits against a debtor, though they all signed stipulations to be filed in each of their cases against the debtor and the inter-pleader in attachment, agreeing that judgment might be entered for the interpleader, this does not show a ratification by any one of the attaching creditors of the acts of the other attaching creditors, so as to render their trespass in making the attachments joint.

3. Under Rev. St. 1899, § 2870, providing that defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution and all other consequences of such judgment in the same manner and to the same extent as defendants in a judgment founded on contract, does not authorize contribution where there was no concert of action among the tort feasors.

Appeal from St. Louis Circuit Court; W. B. Douglas, Judge.

Action by the Paddock-Hawley Iron Company against Henry Rice and others. From a judgment for defendants, plaintiff appeals. Affirmed.

W. B. Homer, for appellant. Martin L. Clardy, Robt. A. Anthony, Walter D. Coles, Jones, Jones & Hocker, and Lyon & Swarts, for respondents.

MARSHALL, J.

This is a suit in equity for contribution. In March, 1891, one E. R. Casebeer was engaged in business in Williamsville, Wayne county, Mo. The plaintiff and the defendants Rice, Stix & Co., James Beakey Stove Company, and Clark Shoe Company (which has since ceased to do business, and its former directors are sued as trustees of the company) were engaged in business in St. Louis, and the defendants M. Deguire & Co. were engaged in business in Fredericktown, Mo. Some time prior to March 17, 1891, the Peters-Miller Shoe Company began an attachment suit against Casebeer, and had it levied on his stock of goods. Thereupon, on March 17, 1891, the Clark Shoe Company, James Beakey Stove Company, Rice, Stix & Co., and the Martin Clothing Company, separately, and each for himself, and without the knowledge of the other, instituted attachment suits against Casebeer. They placed their claims in the hands of the Ladd Collection Agency, in St. Louis; and Ladd sent them to I. N. Davidson, an attorney at Poplar Bluff, and he employed S. R. Durham, an attorney at Piedmont, to help him. On March 15, 1891, a traveling representative of the plaintiff went to Williamsville, and presented a bill to Casebeer for what he owed the plaintiff. Casebeer gave him a draft for the bill, and on the next day he sold Casebeer another bill of goods. On March 18th said representative was notified that the draft had not been paid, and directed to go to Williamsville to attend to it. Upon arriving at Williamsville, said representative found the store locked up, and learned that the Peters-Miller Shoe Company had attached the goods. He made inquiries about Casebeer's affairs, and found that he had transferred all his goods and property to one Jay L. Smyth, of Iowa, to secure him what he owed him, and that Smyth was in possession when the Peters-Miller Shoe Company's attachment was served. Thereupon said representative employed John R. Raney, an attorney at Williamsville, and on March 19th instituted an attachment suit against Casebeer. Neither the plaintiff nor its representative nor its attorney knew at that time that Rice, Stix & Co., James Beakey Stove Company, Clark Shoe Company, and the Martin Clothing Company had begun attachment suits against Casebeer two days previously. But the plaintiff's representative acted for the plaintiff alone, and without consultation or concert of action with any other creditor. Thereafter, on March 21st, a member of the firm of M. Deguire & Co. heard that Casebeer was in financial difficulty, and he went to Piedmont, and consulted John R. Raney, with the result that M. Deguire & Co. also began an attachment suit against Casebeer. But no member of that firm knew when their attachment suit was begun that the plaintiff had begun an attachment suit against Casebeer two days previously, nor that any one else had done so, except one Joe Williams, and did not even know at that time of the conveyance by Casebeer to Smyth. They also employed Mr. Raney as their attorney, but he says he did not tell Deguire & Co. that he represented the plaintiff herein, nor that they had started an attachment suit against Casebeer two days previously. The clerk issued writs of attachment in all the cases, and placed them all in the sheriff's hands at the same time, on March 23d, and the sheriff levied them on March 24th. Mr. Raney, acting for the plaintiff herein, says he directed the sheriff to levy the plaintiff's attachment first, and to levy upon property as to which the expenses would be as small as possible. None of the other creditors gave any directions whatever to the sheriff, and were not present when the levy was made. The sheriff levied all the attachments on March 24th. In his return to the plaintiff's writ, he said he levied upon "all the personal property listed in the schedule hereto attached, and which is made a part of this return," and in his returns upon all the other writs he said he levied upon "all the personal property listed and scheduled and attached to my return in the case of Paddock-Hawley Iron Co. v. E. R. Casebeer, which list is made a part of this return." On March 28, 1891, Rice, Stix & Co., Clark Shoe Company, Martin Clothing Company, and James Beakley Stove Company, each for themselves, obtained orders in their respective cases for the sale of the personal property. On May 4, 1891, the plaintiff, Paddock-Hawley Iron Company, and M. Deguire & Co., each for themselves, obtained orders in their respective cases for the sale of the personal property. Thereafter the sheriff sold the attached property for $2,174.70. On July 16, 1891, Jay L. Smyth filed interpleas in each of the six attachment suits. The venue was changed in all the cases from Wayne county to Reynolds county. The Deguire case was tried twice. The first time it resulted in a hung jury, and the second time a verdict was returned for the defendant, but afterwards a new trial was granted. Upon these trials, Mr. Raney, who was attorney for Deguire & Co., and also for the Paddock-Hawley Iron Company, tried the case on behalf of the defendants. He was assisted by Mr. Yancey, who was attorney for the Peters-Miller Shoe Company and for Williams & Co., and by Mr. L. F. Dinning, who was employed as special counsel in all the attachment cases. Mr. Durham was present, but only as a witness. Mr. Davidson took no part in the trial. Thereafter the case of The Peters-Miller Shoe Company v. Casebeer (Smyth, Interpleader) was tried in the circuit court, and resulted in favor of the plaintiff. The interpleader appealed to the St. Louis Court of Appeals, and that court reversed the judgment, but held that the evidence was insufficient to support a finding that the conveyance to Smyth was fraudulent. Peters-Miller Shoe Co. v. Casebeer, 53 Mo. App. 640. As the evidence adduced in that case was adjudged insufficient to support a judgment in favor of the attaching creditor, and as the evidence in all the other cases was the same, the attorneys for all the parties entered into a stipulation, to be filed in each case, agreeing that judgments might be entered in each case in favor of the interpleader, Smyth, for the $2,939.30 in the hands of the sheriff, resulting from the sale of the attached property. Thereafter Smyth instituted suit against the Paddock-Hawley Iron Company, in Iowa, to recover the value of the goods that had been levied on under the attachment writs. The cause was removed to the United States Circuit Court for the Northern District of Iowa, and the trial resulted in a judgment for the plaintiff therein for $4,549, principal and interest, $1,398 attorney's fees, and $704 costs. The court, however, required Smyth to bring suit against the sheriff of Wayne county for the recovery of the $2,939.30 in his hands as aforesaid. This the plaintiff did, and recovered judgment against the sheriff, but as the courthouse had been burned, and the records destroyed, it was not ascertained who his bondsmen were. So no judgment was obtained against them. Nothing was realized on the judgment against the sheriff. The Paddock-Hawley Iron Company paid $250 attorney's fees and expenses in the prosecution of this suit. Thereupon the Paddock-Hawley Iron Company paid the judgment, attorney's fees, and costs and expenses in the United States court for Iowa, amounting to $6,651.89, and then instituted this suit in equity against the other attaching creditors, except the Martin Clothing Company, which had failed. The circuit court entered judgment for the defendants, and the plaintiff appealed.

The plaintiff's contention is that all the attaching creditors acted jointly; that, although the writs were sued out at different times, they were all levied at the...