State, ex rel. Burton v. McKeon

• Decision Date: 03 May 1887
• Citation: 25 Mo.App. 667
• Parties: THE STATE TO USE OF J. W. BURTON, Respondent, v. THOMAS MCKEON ET AL., Appellants.
• Court: Missouri Court of Appeals

25 Mo.App. 667

THE STATE TO USE OF J. W. BURTON, Respondent, v. THOMAS MCKEON ET AL., Appellants.

Court of Appeals of Missouri, St. Louis.

May 3, 1887

APPEAL from the St. Charles County Circuit Court, W. W. EDWARDS Judge.

Reversed and remanded.

W. A ALEXANDER and GEORGE W. ROYSE, for the appellants: In order to sustain a suit on an attachment bond, it is necessary for the plaintiff to show that the attachment suit had been finally disposed of, adversely to the plaintiff in that suit. The State to use v. Williams, 48 Mo. 210; Drake on Attachment, p. 107, sect. 162 a; Nolle v. Thompson, 3 Met. [Ky.] 121. In the attachment suit the record discloses no order of the circuit court upon the sheriff, to deliver the attached property to the defendant Burton, and such an order is necessary, to render the obligors liable upon the bond herein. Brotherton v. Thompson, 11 Mo. 94; Jones v. Jones, 38 Mo. 429. The measure of damages in such suits is the market value of the goods taken, and legal interest on the same, if lost; or if the property is afterwards returned to the owner, legal interest on the market value of said property, for the time for which the owner was deprived of the use of the property. Spencer v. Vance, 57 Mo. 427; Watson v. Smelting Co., 8 Mo.App. 604; The State to use v. Allen, 12 Mo.App. 566; The State to use v. Bacon, 24 Mo.App. 403.

THEODERICK F. MCDEARMON and LOUIS H. BREKER, for the respondent: The value of the use of the property during the time of its detention is an element of damage in an action on the bond in attachment. Mix v. Kepner, 81 Mo. 93; Chapman v. Kerr, 80 Mo. 158; Jackson v. Allen, 12 Mo.App. 566; The State to use v. Thomas, 19 Mo. 613. Attorneys' fees are a proper element of damages in such cases, and it was not error to admit testimony on that subject. The State to use v. Stark, 75 Mo. 566; The State to use v. Beldsmeier, 56 Mo. 226; The State to use v. Allen, 12 Mo.App. 566.

OPINION

THOMPSON J.

This is an action upon an attachment bond, the condition of which was that the plaintiff " should prosecute his action without delay and with effect; refund all sums of money that might be adjudged to be refunded to the defendant, or found to have been received by the plaintiff, and not justly due to him; and pay all damages and costs that might accrue to any defendant or garnishee by reason of the attachment, or any process or proceedings in the suit, or by reason of any judgment or process therein." A trial before a jury resulted in a verdict and judgment for the relator, for the penalty of the bond, with an assessment of damages at the sum of three hundred and seventy-five dollars. The defendants prosecute this appeal.

The attachment was sued out on the thirtieth day of May, 1884. On the same day, it was levied by the sheriff upon the following personal property of the defendant: One gray horse mule, one sorrel horse mule, two sorrel mare mules, one bay horse mule, one brown horse mule, one bay horse, one brown horse, one brown stallion, five two-horse wagons, one sulky, five sets of double harness, two tents, two stoves, and " all feed for stock on hand."

On June 4, the sheriff, at the request of the plaintiff, released the following described personal property from the levy: One sorrel horse mule, two sorrel mare mules, one bay horse mule, one brown horse mule, one two-horse wagon, one set of double harness, two tents, and two stoves, and delivered the same to the possession of the defendant in the attachment.

On the ninth day of June, 1884, the defendant in the attachment moved the court to compel the plaintiff to give another bond, for the reason that the bond given was insufficient, alleging that the principal and sureties therein were insolvent. On the same day the court made the following order: " Now at this day appear the said parties, by their respective attorneys, and the motion of said defendant to require said plaintiff to give another bond in this case coming on to be heard, it is considered by the court that the same be sustained. And it is ordered by the court that said plaintiff give another bond herein, with further security, within ten days after this date, and that if said plaintiff shall fail to give said bond, the attached property shall be released." No bond was ever given in pursuance of this order, nor does any subsequent order of the court touching the attachment proceedings appear of record in the cause.

The following additional return of the sheriff was endorsed on the writ of the attachment: " And on June 23, 1884, by virtue of an order of the circuit court of St. Charles county, Missouri, I did release all of the remaining property described in the above levy." The order referred to in this return was, doubtless, the order above quoted, since no other order appears of record in the attachment proceedings to which it could refer.

I. In this state of the record, the first question presented by the appellants is, whether, at the date of the institution of the present action, the attachment proceedings had come to an end, so as to entitle the defendant therein to maintain this action on the attachment bond. We are of opinion that the proceedings had come to an end. A supplementary order, reciting the failure of the plaintiff in the attachment suit to give the additional bond, as required by the order of June 9, and quashing the attachment, and directing a release of the property by the sheriff, might have been more regular, but it does not seem to have been necessary. Indeed, it may not have been practicable. The court may have adjourned for the term prior to the expiration of the ten days. The sheriff could easily learn whether the additional bond had been given, and, under the terms of the order, if the additional bond had not been given within the ten days prescribed, he might have become liable, as a trespasser, for continuing to hold the attached property. The recital in the order of June 9, " that, if the said plaintiff shall fail to give said bond, the attached property shall be released," was tantamount to a direction to release the attached property after the expiration of the ten days, in default of the giving of the new bond. The order was authorized by the terms of the statute (Rev. Stat., sect. 406), and it is provided in section 407, that if the plaintiff shall fail to comply with such order, within ten days after the same shall be made, the suit shall be dismissed at his costs. No formal order, dismissing the suit, has ever been entered, and it is conceded that, at the time of the trial of this action, it was still pending; but it seems that the clause of the order of the court, last quoted, had the legal effect of discharging the attachment, without the making of any further order in the cause. If so, the condition of the bond, which had been given, was thereupon broken, and a right of action thereon accrued to the defendant in the attachment. Actions of this kind sustain some analogy to actions for the malicious prosecution of criminal actions, and in such a case we have recently held that the essential thing, in order to give the plaintiff a right of action, provided it exists upon other meritorious grounds, is, that the prior prosecution should have come to an end, and that it is immaterial in what manner it came to an end. Kennedy v. Holladay, 25 Mo.App. 503. In the present case, upon analogous reasoning, we hold that it is not necessary, in order to give a right of action on the bond to the defendant in the attachment suit, that the attachment proceeding should have come to an end, by the trial of an issue made by a plea in abatement, or by a judgment, in favor of the defendant, on the merits. The essential thing is, that it came to an end in some way; since, in whatever way it came to an end, the plaintiff therein has failed to sustain the undertaking, for the performance of which he gave a bond, and the defendant has suffered damage and loss, which are covered by the terms of the bond, and for which he is entitled to compensation at the hands of the parties to the bond.

II. It follows, from this reasoning, that we do not regard the next point, made by the appellants, as tenable: that the defendant in the attachment suit (plaintiff herein), by declining to take any further steps in the attachment matter, by filing his answer, and by going to trial on the merits of the case, as shown by the record, has waived all rights, accruing to him under the attachment bond. If the attachment had subsisted, he would, indeed, have waived the right to plead in abatement thereto; but the law does not require the doing of a vain thing, and the attachment, having come to an end in another way, and the attached property having been restored to the defendant in the attachment suit, it was not necessary, in order that he should acquire a right to sue on the bond, for him to plead in abatement, and succeed upon a trial of the issue thereunder.

III. For the foregoing reasons, we, likewise, regard the contention as untenable, that a formal order of the court was necessary requiring the sheriff to deliver the attached property to the defendant in the attachment. The authorities cited in support of this contention have no application to the question. Jones v. Jones (38 Mo. 429), does not touch the question at all, directly or inferentially; and Brotherton v. Thomson (11 Mo. 94), merely holds that, where property is attached in the hands of a person not the defendant in the attachment suit, and is retained by giving bond to the sheriff for its delivery, " when and where the court shall direct," etc., an order of the court for its delivery is necessary to render the obligor liable to an action on the forthcoming bond. The reason of the rule is, that the bond had...