State v. American Surety Co., 5349.

• Decision Date: 24 August 1934
• Docket Number: No. 5349.,5349.
• Citation: 74 S.W.2d 1094
• Parties: STATE ex rel. STEVENSON v. AMERICAN SURETY CO.
• Court: Missouri Court of Appeals

74 S.W.2d 1094

STATE ex rel. STEVENSON v. AMERICAN SURETY CO.

No. 5349.

Springfield Court of Appeals. Missouri.

August 24, 1934.

Rehearing Denied October 3, 1934.

Appeal from Circuit Court, Butler County; Robert I. Cope, Judge.

"Not to be published in State Reports."

Suit by the State, on the relation of Earl Stevenson, against the American Surety Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Sharp & Baynes, of New Madrid, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

BAILEY, Judge.

This is a suit on an attachment bond by an interpleader. The suit originated in Pemiscot county, but was transferred to the circuit court of Butler county on a change of venue where it was tried before a jury, resulting in a verdict and judgment in favor of plaintiff in the sum of $3,375. Defendant has appealed.

The petition charges that on June 4, 1931, one Clyde W. Drew instituted an attachment suit in the circuit court of New Madrid county, Mo., against the Southern Dredging Company, a nonresident; that an attachment writ was issued directing the sheriff of said county to attach certain property consisting of one Koehring Drag Line, blacksmith equipment complete, and a Model A Ford Truck; that the sheriff, acting under said writ, levied upon said property, none of which belonged to defendant in said cause, but was the property of relator; that relator endeavored to obtain release of said property but the plaintiff in said attachment suit refused to release same; that relator was forced to employ counsel and file an interplea in said attachment case, and upon trial a judgment was entered releasing all of said property to relator. It is further alleged that the attachment bond, herein sued upon, was duly executed, filed, and approved in said suit, which bond is set out in full. The petition further sets forth the various items of traveling expenses, loss of time, attorneys' fees, and loss incurred by reason of being kept out of the use of the property attached, all of which is alleged to total $5,967. It is further alleged that the condition of the bond was that plaintiff therein should "pay all damages and costs that may accrue to any defendant, garnishee or interpleader by reason of the attachment, or any process or proceeding in the suit, or by reason of any judgment or process thereon," etc. It is further alleged that the bond was breached by Clyde W. Drew in that he has never paid relator the amount of his damages aforesaid, though demanded so to do, but is still justly indebted to him therefor; that relator was a successful interpleader in said suit and suffered said damages.

The answer consisted of a general denial of all allegations except that defendant is an insurance corporation authorized to do business in the state of Missouri.

Defendant's brief contains nine assignments of error, the first five of which are directed to the same proposition or theory. This theory is to the effect that, since an interplea under our statute is in the nature of an action of replevin ingrafted upon an attachment suit, and since a general claim for damages in a replevin suit petition is sufficient and damages may be allowed in a replevin suit, and since plaintiff, as interpleader, did ask for damages generally in the attachment suit (although none were allowed), it follows that the judgment in the interpleader suit, introduced in evidence in this case, is conclusive upon all points raised, or which might have been raised, in the attachment suit and is a complete bar to this action although not pleaded as a bar.

We find from the authorities cited by defendant that our statutory interplea has been held to be in the nature of an action of replevin ingrafted on a suit by attachment to try title to specific chattels. Wheeler Savings Bank v. Tracey, 141 Mo. 252, loc. cit. 261, 42 S. W. 946, 64 Am. St. Rep. 505; Rice, Stix & Co. v. Sally, 176 Mo. loc. cit. 119, 75 S. W. 398. It is also true that damages may be allowed in a replevin suit if demanded by the successful party in his petition. Babb v. Talcott, 47 Mo. 343. Also a general claim for damages in a replevin action has been deemed sufficient. Burkeholder v. Rudrow, 19 Mo. App. 60.

In fact, the replevin statute provides that damages shall be assessed and the judgment rendered against plaintiff and his sureties in certain instances (see section 1635, R. S. Mo. 1929 [Mo. St. Ann. § 1635, p. 1785]). But even in a replevin suit, where the court and jury fail to assess damages, a suit may be maintained on the bond for damages. Robbins v. Foster, 20 Mo. App. 519.

It is to be observed, however, that although an interplea in an attachment suit has the characteristics of an action of replevin, the bond given in an attachment suit is unlike the forthcoming bond in a replevin action in at least one important particular. The bond in a replevin suit is made directly to the defendant in the case. Section 1626, R. S. Mo. 1929 (Mo. St. Ann. § 1626, p. 1780). The statutory bond in an attachment suit is required to be made to the state of Missouri, for the protection of any defendant, garnishee, or interpleader, as well as the sheriff or other officer, against any damages and costs arising by reason of the attachment. Section 1280, R. S. Mo. 1929 (Mo. St. Ann. § 1280, p. 1498). The attachment statute also specifically provides that any person injured may sue on said bond in the name of the state to the use of such person injured for all damages and costs that may have accrued to him. Section 1284, R. S. Mo. 1929 (Mo. St. Ann. § 1284, p. 1500). This court has held that the proper remedy of a successful defendant in an attachment suit is by a separate suit on the bond for special damages. Veale v. Bourne, 224 Mo. App. 614, 30 S.W.(2d) 793. The successful interpleader has, we think, the same remedy. Clark v. Brott, 71 Mo. 473; State ex rel. v. Lumber Co., 70 Mo. App. 663; Taylor v. Hines, 31 Mo. App. 622. In fact in one case, the assignee of an interpleader, who had been adjudged the rightful owner of property, was permitted to recover on the attachment bond for damages, expenses, etc. State ex rel. Blair v. Pitman, 131 Mo. App. 299, 111 S. W. 134. The general rule is that damages arising out of the attachment should be recovered in an independent action, in the absence of statute. 6 C. J. 409.

We also take the view that the attachment statute, itself, contemplates separate suits on the bond for those parties entitled to damages by reason of the attachment, because section 1285, R. S. Mo. 1929 (Mo. St. Ann. § 1285, p. 1501), provides for a set-off of which an obligor on the bond might avail himself. This right could not be asserted in the original attachment suit by an obligor not a party thereto. Also, to try all such issues that might be raised under such circumstances, would prove most cumbersome, if not impossible. The statute gives rise to a separate and distinct cause of action on the bond in which suit the merits of the original case are not involved and therefore could not, in our opinion, be a bar to an action on the bond. In the case of Taylor v. Hines, supra, it is said:

"It is contended that the judgment on the interplea is a bar to this action. I think not. It was ruled in Clark v. Brott, 71 Mo. 473, that a successful interpleader could, notwithstanding his interplea, sue the officer levying the attachment, for the trespass. And in Perrin v. Claflin, 11 Mo. 13, the plaintiff, after a successful interplea, sued...