State v. American Surety Co.

• Decision Date: 06 June 1922
• Docket Number: No. 17163.,17163.
• Citation: 242 S.W. 983,210 Mo. App. 203
• Parties: STATE ex rel. and to Use of LEACH v. AMERICAN SURETY CO. OF NEW YORK.
• Court: Missouri Court of Appeals

242 S.W. 983

210 Mo. App. 203

STATE ex rel. and to Use of LEACH v. AMERICAN SURETY CO. OF NEW YORK.

No. 17163.

St. Louis Court of Appeals. Missouri.

June 6, 1922.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

Action by the State of Missouri, at the relation of and to the use of W. A. Leach, doing business under the firm name and style of the Leach Lumber & Tie Company, against the American Surety Company of New York. From judgment for plaintiff, defendant appeals. Reversed.

Bryan, Williams & Cave, of St. Louis, for appellant.

Nortoni, Moore, Breaker & Green, of St. Louis, and Henson & Woody, of Poplar Bluff, for respondent.

BIGGS, C.

This action is founded upon a statutory attachment bond, executed by defendant (appellant) as surety in an attachment suit against plaintiff by one Charles C. Curry.

On November 16, 1918, the date of the filing of the Curry suit, an affidavit for an attachment was filed in aid thereof accompanied by the bond in suit. The bond is in the form prescribed by section 1731, R. S. 1919, is penal in character, and is given for the purpose of indemnifying those persons mentioned therein against any loss or damage occasioned or proximately caused by the attachment proceedings. The bond is payable to the state of Missouri, and is conditioned as follows:

"Now, if said plaintiff shall prosecute his action without delay and with effect, refund all sums of money that may be adjudged to be refunded to the defendant W. A. Leach or found to have been received by plaintiff and not justly due him, and 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 therein, and pay all damages and costs that may accrue to any sheriff or other officer by reason of acting under the writ of attachment, following the instructions of the plaintiff, then this obligation to be void, otherwise to remain in full force."

In the attachment suit of Curry against the relator herein, Leach, no service of process was had or attempted upon the defendant, and he at no time appeared in that suit, nor was any property of the defendant levied upon by the sheriff. On the day that the suit was filed a writ of garnishment was issued at the direction of the plaintiff, Curry, and served upon the Missouri Pacific Railroad Company. Nothing further was done in the attachment suit, and the same was dismissed on November 7, 1919. In the garnishment case the usual interrogatories were filed, and the Missouri Pacific Railroad Company answered, denying that it was indebted to the defendant Leach in any sum. Afterwards the garnishee's answer was denied by the plaintiff, but nothing further was done in that case, and it was likewise dismissed on November 7, 1919.

On November 14, 1919, plaintiff herein, who was defendant in the attachment suit, filed the present action upon the said attachment bond. The petition, after alleging the filing of the attachment suit of Curry against Leach and the giving of the bond by the plaintiff in that proceeding and the issuance of the attachment against the defendant, alleged that the plaintiff herein had sold to the United States Railroad Administration in charge of the Missouri Pacific Railroad ties and other timber to the amount and value of $20,000; that the sheriff, acting under the writ of attachment and under the direction of the plaintiff, Curry, attached the said sum of $20,000 due plaintiff from the said United States Railroad Administration in the hands of the agents, servants, and employés of said United States Railroad Administration in charge of the Missouri Pacific Railroad, and summoned the Missouri Pacific Railroad Company as garnishee; that pursuant to said attachment and garnishment the said United States Railroad Administration, in charge of said Missouri Pacific Railroad, and the Missouri Pacific Railroad Company, withheld from relator the sum of $20,000 so due and owing him as aforesaid, and deprived him of the use thereof, to his injury and damage; that by reason of said attachment proceedings plaintiff herein was deprived of the use and enjoyment of said $20,000 during the pendency of said suit, to his damage in the sum of $1,000, and that he was further damaged in the additional sum of $1,000 for attorney's fees and other necessary expenses in defending said attachment suit. The petition also asked for damages and attorney's fees for vexatious refusal to pay plaintiff's claim. The petition contained other allegations of damage in reference to plaintiff's credit and reputation, but these were abandoned at the trial, and need not be referred to here.

Issue was joined upon the filing of a general denial by the defendant, and after a trial by a jury there was a verdict and judgment for plaintiff in the sum of $1,456.53 actual damages, together with the sum of $145.65, assessed by the jury as a penalty for vexatious refusal to pay, and also an attorney's fee of $400, making a total judgment of $2,002.18. Following the usual preliminaries, the defendant has perfected an appeal from a judgment based upon the verdict of the jury.

It is urged by defendant that the evidence failed to disclose that the plaintiff suffered any actual or legal damages which were directly and proximately caused by the issuance of any process in the attachment suit, and therefore its demurrer to the evidence should have been sustained, inasmuch as the bond under the statute is given to the state of Missouri, and can only be sued upon by persons named therein who have suffered damage by reason of the attachment proceedings. The evidence disclosed, and it was in fact...