Schwartzberg v. The Central Avenue State Bank

• Decision Date: 08 April 1911
• Docket Number: 16,999
• Citation: 115 P. 110,84 Kan. 581
• Parties: B. SCHWARTZBERG, Appellant, v. THE CENTRAL AVENUE STATE BANK, Appellee
• Court: Kansas Supreme Court

115 P. 110

84 Kan. 581

B. SCHWARTZBERG, Appellant, v. THE CENTRAL AVENUE STATE BANK, Appellee

No. 16,999

Supreme Court of Kansas

April 8, 1911

Decided January, 1911.

Appeal from Wyandotte court of common pleas.

Judgment reversed and new trial rewarded.

SYLLABUS

SYLLABUS BY THE COURT.

1. ATTACHMENT--Proof that Order Was Wrongfully Obtained. A final judgment in an attachment proceeding in favor of the defendant is conclusive that the attachment was unlawfully and wrongfully obtained.

2. ACTIONS AND REMEDIES--Joinder of Causes of Action--Election. In an action for damages for an unlawful attachment, where the petition charges that the attachment was wrongfully and maliciously obtained, but one cause of action is stated, and it is error to require the plaintiff to elect whether he will proceed for the wrongful or for the malicious taking.

3. BANKRUPTCY--Exempt Property of Bankrupt Does Not Pass to Trustee. Property exempt from process for the payment of a bankrupt's debts does not pass to the trustee in bankruptcy; nor does a cause of action for the wrongful detention thereof.

4. BANKCRUPTCY--Accrual of Action for Taking Exempt Property of Bankrupt. Where exempt property is wrongfully taken in an attachment proceeding, an action immediately lies for the recovery of such property or for damages for the unlawful taking thereof.

5. ATTACHMENT--Property Taken and Its Value--Evidence--Sheriff's Return. The return of a sheriff as to property taken in an attachment proceeding or as to the value thereof is not conclusive against the defendant in the attachment action.

Edward C. Little, for the appellant; John T. Sims, of counsel.

Junius W. Jenkins, for the appellee.

OPINION

SMITH, J.:

Schwartzberg in his petition herein, filed August 16, 1906, states: That on the 13th of February, 1906, he was living in Kansas City, Kan., and conducted a tailoring, clothing and gents' furnishing store; that on that date the defendant bank filed a petition in the common pleas court for the recovery of $ 500 on a promissory note due thirty days thereafter, and at the same time procured an attachment to be issued against this plaintiff's property; that the sheriff seized the entire stock of clothing and other merchandise, all the shelving and counters in the plaintiff's business, and also all the tailoring appliances and stock in trade used by the plaintiff in his business as a tailor, which were exempt from attachment; that the grounds for attachment stated in the affidavit and motion were wholly false, untrue, malicious and without probable cause; that in consequence of such attachment the plaintiff's business was closed, he was deprived of the possession thereof, also of his exempt tools, appliances and stock in trade, his business was ruined and his livelihood cut off for about eight months; that he employed and paid attorneys to the amount of $ 400; that in direct consequence of such attachment proceedings the plaintiff was financially wrecked, his standing and credit as a business man and his reputation for honesty and fair dealing ruined to such a degree that he will be unable to carry on a business in the community; that by reason of the wrongful and unlawful acts of the defendant the plaintiff is entitled to punitive damages, and prays judgment for $ 7400.

On the 16th day of April, 1908, Schwartzberg filed an amended petition in this case, which appears to have been like the original petition, except the following:

"That on or about the 27th day of January, 1908, said action [attachment suit of the bank against Schwartzberg] was duly and regularly tried by said court of common pleas, and said court found the issues joined in said action in favor of the defendant therein, B. Schwartzberg, who is plaintiff herein, and rendered judgment against said Central Avenue State Bank, the plaintiff therein, thereby conclusively and finally determining and adjudicating that said grounds of attachment as stated in said motion, affidavit and petition were wholly false, untrue and utterly without foundation, in fact. A true copy of said judgment is hereto attached, marked 'Exhibit C,' and made a part hereof.

"That by reason of the malicious and unlawful acts of the defendant in said attachment proceedings the plaintiff is entitled to punitive damages or exemplary damages in the sum of $ 1000, in addition to the actual damages above mentioned.

"That on the 8th day of March, 1906, and as a direct result of the attachment of the defendant, as aforesaid obtained, the plaintiff was by the United States district court of the district of Kansas adjudged an involuntary bankrupt on the application of the Courtney Shoe Company, the Swofford Dry Goods Company, and the American Hand Sewed Shoe Company, who were at said time other creditors of this plaintiff.

"That in said bankruptcy proceedings the entire stock of goods of the plaintiff's said business and the fixtures were taken possession of by a receiver appointed by said United States district court, and were by him sold at forced sale at a great sacrifice and loss of about $ 2000 to the plaintiff."

To this amended petition the bank filed a general denial. At the conclusion of Schwartzberg's evidence the bank filed a demurrer thereto, on the ground that it was not sufficient to prove a cause of action in favor of the plaintiff and against the defendant. The demurrer was sustained, and, a motion for a new trial having been denied, judgment was rendered against Schwartzberg for costs. From this judgment he appeals.

There are numerous specifications of error, which may be grouped under five heads: (1) The exclusion of evidence offered by the plaintiff; (2) the order of the court requiring the plaintiff to elect as to causes of action; (3) in admitting in evidence a notation of the sheriff showing that the goods, after being taken under the attachment, were turned over to the United States marshal; (4) in sustaining a demurrer to the evidence; and (5) in denying the motion for a new trial and rendering judgment for the defendant.

The plaintiff in his petition alleged that the attachment was wrongful and malicious, and, after he had introduced...