Panagos v. General Cigar Co.

• Decision Date: 09 February 1925
• Docket Number: No. 15229.,15229.
• Parties: PANAGOS et al. v. GENERAL CIGAR CO.
• Court: Missouri Court of Appeals

268 S.W. 643

PANAGOS et al. v. GENERAL CIGAR CO.

No. 15229.

Kansas City Court of Appeals. Missouri.

February 9, 1925.

Appeal from Circuit Court, Jackson County; Charles B. Pence, Judge.

"Not to be officially published."

Achtenberg, Rosenberg, Trusty & Fredman, of Kansas City, for appellant.

L. A. Laughlin, of Kansas City, for respondents.

ARNOLD, J.

This is an action to recover actual and punitive damages, and is based upon the theory that defendant secured the issuance of an execution, knowing the same to be void, and that plaintiffs, under duress, paid $130.23 to defendant herein to prevent a levy under said execution.

The facts of record are that on August 13, 1921, defendant, a corporation, recovered a judgment before S. R. Layton, a justice of the peace in and for Kaw township, Jackson county, Mo., for $113.23, against one Sam Hronis, who at that time, or thereafter, was in the employ of plaintiffs Panagos and Karris, a copartnership doing business at Kansas City, Mo., under the trade name of Arcadia Confectionery. On April 13, 1922, execution was issued on said judgment, and delivered to a constable for service, and on April 20 the constable served notice of garnishment on Panagos and Karris. The latter filed answer denying indebtedness to Hronis, and on the same day the General Cigar Company filed denial to said answer and the case was continued to May 5, 1922.

On the afternoon of May 4, 1922, Hronis filed a petition in bankruptcy in the United States District Court in and for the Western District of Missouri at Kansas City, and on the following day at 10 o'clock in the morning, Hronis was adjudged a bankrupt, and the case was referred by the court to the referee in bankruptcy.

There was testimony in plaintiff's behalf that the attorney for the bankrupt went to the office of the clerk of Justice Layton and verbally notified him of the adjudication in bankruptcy that morning. The said clerk testified that he had no recollection of this circumstance. On May 5, at 2 p. m., the justice entered judgment by default against the garnishees for $113.23 and costs. There was testimony tending to show that on May 17, 1922, the attorney for the garnishees served on the justice a written notice that Hronis had been adjudged a bankrupt on May 5; that a certified copy of, the adjudication in bankruptcy accompanied the notice, and on said date the justice of said court acknowledged receipt thereof in writing.

On June 2, 1922, the justice issued an execution on the judgment against the garnishees, and it was delivered to one Ryland, a deputy constable, for service. Ryland, accompanied by one of the attorneys for defendant herein, went to the store of the garnishees and, as charged in the petition, by threats of closing the store, compelled the garnishees to pay $130.23, in satisfaction of the judgment and costs. This suit was instituted by the garnishees against the General Cigar Company to recover compensatory and punitive damages based upon the circumstances above detailed.

The petition formally recites the facts above set forth, and further alleges that the judgment against the garnishees was void on its face; that said justice of the peace was without authority to hear and determine said garnishment proceeding, by reason of the bankruptcy of Hronis, of which said General Cigar Company had notice; that defendant, by and through its attorneys, in company with said constable on June 6, 1922, came to the store of plaintiffs, and, in the presence and hearing of many customers, forcibly seized the contents of the cash register, and in a loud, menacing, and threatening manner drove customers out of plaintiff's store, preparatory to locking its doors, when plaintiffs, under protest, paid the sum of $130.23, in satisfaction of said void judgment. The petition charges—

"That the foregoing acts of defendant were wantonly, willfully, and maliciously done for the purpose of harassing and oppressing plaintiffs and injuring them in their good name and reputation, and to discredit them in the hearing of their customers to the great shame and humiliation of plaintiffs."

The prayer is for $500 actual and $500 punitive damages. A demurrer was filed on the ground that the petition fails to state facts sufficient to constitute a cause of action against defendant, but was overruled.

The amended answer is a general denial, and, for further answer, defendant states that plaintiffs at all times mentioned in their petition were doing business under the name of Arcadia Confectionery; that said name was a fictitious name, and that plaintiffs had failed and refused to register said name with the secretary of state of the state of Missouri, as required by law.

The reply is a general denial. Upon the issues thus made the cause went to trial. At the beginning of the trial, defendant demurred to the introduction of any evidence, upon the ground that the petition failed to state a cause of action, and for the further reason that the proceedings constitute a collateral attack on a judgment good on its face. The demurrer was overruled.

Trial was to a jury, whose verdict was for defendant, and judgment was entered accordingly. Motions for new trial and in arrest were duly filed. The motion for a new trial was sustained on the ground that the verdict was against the weight of the evidence, and the motion in arrest was overruled. From the action of the court in sustaining the motion for new trial, defendant appeals. There is only one question properly before this court for determination on this appeal, to wit, was the court justified in sustaining the motion for a new trial.

Other points are raised in defendant's brief to the effect that ...