State ex rel. First National Bank of Fresno v. Seavey

• Court: Kansas Court of Appeals
• Writing for the Court: JOHNSON, J.
• Citation: State ex rel. First National Bank of Fresno v. Seavey, 119 S.W. 17, 137 Mo.App. 1 (Kan. App. 1909)
• Decision Date: 03 May 1909
• Parties: THE STATE OF MISSOURI ex rel. FIRST NATIONAL BANK OF FRESNO, Defendant in Error, v. SEAVEY & FLARSHEIM et al., Plaintiffs in Error

119 S.W. 17

137 Mo.App. 1

THE STATE OF MISSOURI ex rel. FIRST NATIONAL BANK OF FRESNO, Defendant in Error, v. SEAVEY & FLARSHEIM et al., Plaintiffs in Error

Court of Appeals of Missouri, Kansas City

May 3, 1909

Rehearing Granted 137 Mo.App. 1 at 12.

Error to the Jackson Circuit Court.--Hon. John G. Park, Judge.

AFFIRMED.

Reversed and remanded.

Karnes New & Krauthoff, for plaintiff in error, filed argument.

Adrian F. Sherman and Ashley, Gilbert & Dunn for defendant in error.

(1) The rule in suits for conversion of property that allowance of interest is discretionary with the jury has no application to actions on attachment bonds on account of the detention of an interpleader's money by the attachment proceedings, in which case interest is the proper measure of damages. Padley v. Catterlin, 64 Mo.App. 647; Goodman v Railway, 71 Mo.App. 464; York v. Bank, 105 Mo.App. 139.

OPINION

JOHNSON, J.

Action brought by an interpleader on an attachment bond to recover damages sustained in consequence of the wrongful levy of the writ of attachment on his property. A trial had on December 13, 1906, resulted in a verdict and judgment for plaintiff in the sum of $ 806.31, and the cause is here on writ of error sued out by defendants.

In 1902, the Minnewawa Home Packing Company, a partnership doing business in California, sold a quantity of raisins to defendants, Seavey & Flarsheim, a partnership in business at Kansas City for the price of $ 1,134.25. At about the same time, the Packing Company sold similar merchandise to Nave-McCord Mercantile Company of St. Joseph for $ 1,403.63. The shipments were made from California, billed respectively to Seavey & Flarsheim and Nave-McCord Mercantile Company. In each case a draft was drawn by the vendor on the vendee for the purchase price and attached to the bill of lading. These drafts were purchased of the Packing Company by plaintiff, a bank at Fresno, California, before the shipments arrived at their destinations. Plaintiff forwarded the drafts for collection and that drawn on the Nave-McCord Mercantile Company was paid to the collection agent at St. Joseph, viz., the National Bank of St. Joseph. The draft drawn on Seavey & Flarsheim was not paid for the reason that the drawees claimed that the Packing Company was indebted to them in the approximate sum of $ 2,000, on account of damages resulting from a breach on the part of the Packing Company of a contract to deliver other merchandise sold to the drawees. On October 20, 1902, about the time of the arrival in Kansas City of the raisins shipped to Seavey & Flarsheim, that firm brought an attachment suit in the circuit court of Jackson county against the Packing Company to recover their damages. The ground of attachment alleged was the non-residence of the defendants. An attachment bond in the sum of $ 4,000, conditioned as required by law, was executed and filed and writs were issued to the sheriffs of Jackson and Buchanan counties. The raisins shipped to Seavey & Flarsheim were seized by the sheriff of Jackson county and afterward sold under order of court for $ 1,134.25. Before the writ reached the sheriff of Buchanan county, Nave-McCord Mercantile Company brought an attachment suit in the circuit court of that county against the Packing Company on a demand of $ 625, and caused the National Bank of St. Joseph to be summoned as garnishee. This was done after Nave-McCord Mercantile Company had paid the draft sent by plaintiff to the St. Joseph bank for collection and while the proceeds were still in the hands of that bank. Afterward, on October 27, 1906, the sheriff of Buchanan county summoned the St. Joseph bank as garnishee in the suit of Seavey & Flarsheim. Interrogatories were filed and answered by the St. Joseph bank and plaintiff interpleaded, claiming to be the owner of the proceeds of both shipments by virtue of its purchase of the drafts with bills of lading attached. A trial of the issues raised by the interplea resulted in a victory for the interpleader, and it was adjudged that plaintiff was the owner of the proceeds of both shipments. After the termination of that suit, and after the lapse of two and a fourth years from the levy of the attachment writs, plaintiff received the proceeds of the shipments and brought the present suit on October 24, 1906. The damages alleged in the petition are as follows:

"And relator further says that it was damaged by said attachment in the sum of three hundred and forty-two dollars and sixty-one cents ($ 342.61), by reason of being deprived of the use of its property and funds of the aggregate amount and value of twenty-five hundred and thirty-seven dollars and eighty-eight cents ($ 2,537.88) for two and one-quarter years because of the levy and garnishment aforesaid, being interest on said amount at six (6) per cent per annum for said period during which said funds were impounded by said proceedings of defendants Seavey & Flarsheim; and in the further sum of seven hundred and seventy-six dollars and twenty cents ($ 776.20), which it was compelled to and did lay out and expend in and about the prosecution of its said interplea, for attorneys' fees in the sum of seven hundred and fifty ($ 750) dollars; and expenses to the amount of twenty-six dollars and twenty cents ($ 26.20), being twenty-one dollars and ninety-five cents ($ 21.95) traveling expenses of four trips by relator's attorney from Kansas City, Missouri, to St. Joseph, Missouri, to obtain settlement and payment over of the said fund impounded by the garnishment of the National Bank of St. Joseph, Missouri, issued in said attachment suit, as heretofore set out, and three dollars and twenty-five cents ($ 3.25), expenses of telegrams between relator in Fresno, California, and its attorneys in Kansas City, Missouri, concerning said attachment and garnishment, and one ($ 1) expense of obtaining certified copy of judgment of the court ordering said garnishee National Bank of St. Joseph to pay said garnished fund to the clerk of the circuit court of Jackson county, Missouri, for the use of relator, upon the dismissal of defendants, Seavey & Flarsheim's appeal by the Kansas City Court of Appeals, for exhibition of said copy to garnishee in order to obtain payment of said garnished fund. That said damages and expenses amounted in all to eleven hundred and eighteen dollars and eighty-one cents ($ 1,118.81), and said expenses were necessary and reasonable and incurred and expended by relator in obtaining the release of its property so impounded as aforesaid." The answer is a general denial.

At the request of plaintiff, the court instructed the jury:

"The court instructs the jury that the relator, First National Bank of Fresno, California, is suing in this action for $ 1,118.81, in which sum it claims to have been damaged by reason of the attachment of its property by the defendants, Seavey & Flarsheim, as follows:

"2-1 4 years' interest at 6 per cent on

$ 1,134.25 proceeds of goods attached

$ 153 12

2-1 4 years' interest at 6 per cent on

$ 1,403.63 funds garnished

189 49

Attorneys' fees in obtaining release of

its said property

750 00

Attorneys' traveling expenses to St.

Joseph, Mo.

21 95

Expenses of telegrams

3 25

Cost of copy of judgment

1 00

$ 1,118 81"

In computing relator's damages, you are instructed that the relator is entitled to recover six per cent per annum upon the amount or value of its property for the length of time the attachment of same by defendants deprived them of its use, and such of the expenses claimed to have been incurred as you may find under the evidence to have been necessarily or reasonably expended by said relator in and about the recovery of its property and money attached by the defendants, Seavey & Flarsheim."

(2) "The court instructs the jury to find its verdict for the relator, First National Bank of Fresno, California, and against the defendants, for the items of six per cent interest per annum on $ 1,134.25 for 2 1-4 years and for $ 26.20 traveling expenses, and for six per cent interest per annum from October 27, 1902, to January 27, 1905, on $ 1,403.63, less the interest on $ 625 from October 27, 1902, to June 15, 1904; and for such reasonable attorneys' fees as you may find from the evidence said First National Bank of Fresno, California, did incur or expend in recovering the property attached and money garnished by the defendants, Seavey & Flarsheim, not exceeding $ 1,118.81 in all. "

First, it is argued by defendants that the court erred in peremptorily directing the jury to allow plaintiff interest at six per cent per annum on the money impounded "for the length of time the attachment of same by defendants deprived them of its use." It is contended that since this is an action for "the inquisition of damages" the jury should have been left to the exercise of its discretion in the determination of the question of whether interest on the money during the period of its detention in the attachment suit should be included in the estimate of plaintiff's damages. Section 2869, Revised Statutes 1899, is invoked in support of that position. It provides: "The jury on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, give damages, in the nature of interest, over and above the value of the goods at the time of the conversion or seizure." Should we find that this section has application in a suit on an attachment bond, we must conclude that the objection to the peremptory nature of the instructions is well founded.

Speaking of this statute, the Supreme Court said in State ex rel v. Hope, 121 Mo. 34, 25 S.W. 893: "That its purpose was to fix some definite manner by which it may be determined whether or not interest, over and above the value of the...