Sibley v. Krauskopf

• Decision Date: 06 February 1934
• Citation: 171 A. 4,118 Conn. 158
• Court: Connecticut Supreme Court
• Parties: SIBLEY v. KRAUSKOPF.

171 A. 4

118 Conn. 158

SIBLEY v. KRAUSKOPF.

Supreme Court of Errors of Connecticut.

February 6, 1934

Appeal from Superior Court, New Haven County; Edwin C. Dickenson Judge.

Action by Edwin D. Sibley against Celia Krauskopf to recover damages for alleged false imprisonment. Judgment for defendant after trial to the court, and plaintiff appeals.

No error.

Charles S. Hamilton, of New Haven, for appellant.

George W. Crawford, of New Haven, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HINMAN, Judge.

In 1925 Celia Krauskopf, the present defendant, and Sarah Wool by writ and complaint, the allegations of which will be stated later, brought to the court of common pleas for New Haven county a civil action against the present, plaintiff and Emma B. Sibley, his wife. On December 5, 1930, a judgment was rendered in that action (Munger, J.) against Sibley in favor of the plaintiffs therein for $960.75 and costs. Subsequently application was made to the clerk for a body execution on this judgment, but the clerk declined to issue it without an order of court. Thereupon the plaintiff's placed a motion on the short calendar for a body execution, which motion was granted (Pickett, J.), and on February 18, 1931, the clerk issued an execution under which a deputy sheriff, in default of any attachable property of Sibley, arrested his body, and he was taken to the county jail, where he remained in confinement until he entered into a jail liberties bond which was the subject of an action for breach thereof. Geddes v. Sibley, 116 Conn. 22, 163 A. 596. In January, 1933, the present action was brought, the complaint alleging that, for reasons therein set forth and which in essence are the same as the grounds of appeal hereinafter stated and discussed, the execution under which the plaintiff was imprisoned was void. Upon the trial the court reached, conclusions adverse to these contentions and rendered judgment for the defendant. Eighteen of the twenty-three assignments of error pertain to these conclusions, but, to adopt a figurative process suggested by the appellant as being applicable to the complaint in the original action but which we regard as more appropriate to these assignments, there " can be distilled from this fermentation of words" two basic claims: First, that the allegations and prayers for relief of that complaint and the judgment rendered thereon were insufficient to support a body execution; and, second, that the execution itself was fatally defective and void, in that it was issued in the name of one of the plaintiffs in that action instead of both.

More specifically, the first claim is that the complaint did not sound in tort but set forth only a cause of action in contract; that consequently the judgment can be regarded as one for damages in contract only and therefore could not warrant an execution running against the body of the defendant. The allegations of the complaint in the original action may be summarized as follows: The plaintiffs therein, Celia Krauskopf and Sarah Wool (hereinafter referred to respectively as Krauskopf and Wool) are sisters. In January, 1922, Wool requested Sibley to procure for her a loan of $880 and, to aid him in obtaining it through a bank in New Haven, Krauskopf at the request of Wool executed an assignment of a mortgage from Jennie F. Shepard to her for $1,100 and indorsed in blank the note secured thereby and delivered the same, through Wool, to Sibley to be used by him as collateral security for the loan. Since that assignment Wool acquired and owns an interest in said mortgage note. On January 10, 1922, Sibley borrowed $880 on his personal note and as collateral security assigned to the bank his right, title, and interest in and to the note and mortgage. Thereafter, from time to time, when the note and renewals thereof matured at the bank, Wool, at the request of Sibley, made payments to him to be applied by him in reduction of the debt owing to the bank on account of the loan and interest thereon.

On June 9, 1925, Sibley, without the knowledge of either plaintiff, procured from the bank a reassignment to him of the note and mortgage and " for the purpose of defrauding and cheating the plaintiffs" agreed with the mortgagor, Shepard, to, and did, accept $775 from her in full settlement of the mortgage debt upon which there was an unpaid balance of principal and interest amounting to $939.66, and released and canceled the mortgage and note. Sibley never notified either plaintiff of this action and " has wrongfully appropriated to his own use the sum of $724.56 of the funds and property of the plaintiffs." Demand was made for the proceeds so " wrongfully appropriated by him to his own use," but payment was refused.

The complaint also alleged that Sibley at and after the time of the transaction in January, 1922, was the owner of real estate but prior to June 9, 1925, transferred it to his wife without consideration. The prayers for relief were for: (1) An accounting of all funds received and disbursed by Sibley for or on account of Wool; (2) damages; (3) that the transfer of the real estate of the defendant to his wife be declared void.

The judgment, which was dated December 4, 1930, stated that the court " finds that there is no evidence in support of the third prayer for relief, there being no evidence of a fraudulent conveyance," and " that there is no necessity for an accounting" ; but " finds the issues in favor of the plaintiff under the second prayer for relief," and adjudges " that the plaintiffs recover of the defendant Sibley $960.75 damages and their costs."

The plaintiffs, properly, set forth in their complaint a recital of the facts comprising the entire transaction with and by the defendant, as they claimed them to be. Those allegations as a whole, should be construed as constituting two, perhaps three, causes of action, with prayer for relief appropriate to each: One for an accounting for the payments made by Wool to Sibley to be by him applied on account of the loan from the bank, another for damages for conversion through the settlement and discharge by Sibley of the Shepard note and mortgage and appropriation of the proceeds, and, ancillary to these, an attack, as fraudulent, upon the transfer of Sibley's real estate to his wife. Any misjoinder involved was waived by failure to object seasonably and in the manner provided by rule. Practice Book, 1922, p. 293, § 209; Maisenbacker v. Society Concordia. 71 Conn. 369, 376, 42 A. 67, 71 Am.St.Rep. 213. It plainly appears from the Judgment file that the trial court found for the defendant upon the first and third causes of action and against him on the second, and this is...