State v. Fargo

• Decision Date: 15 June 1899
• Citation: 52 S.W. 199,151 Mo. 280
• Parties: STATE ex rel. RUSSELL v. FARGO et al.
• Court: Missouri Supreme Court

52 S.W. 199

151 Mo. 280

STATE ex rel. RUSSELL v. FARGO et al.

Supreme Court of Missouri, Division No. 2.

June 15, 1899.

APPEAL — MOTION FOR NEW TRIAL — ATTACHMENT BOND — DAMAGES — ATTORNEY'S FEES.

1. Errors which would be ground for a new trial must be assigned as such in the motion for a new trial before they can be considered on appeal, an exception to the court's rulings being insufficient.

2. In an action on an attachment bond it is no defense that the cause of action in which the attachment issued was predicated on an illegal transaction.

3. Since the effect of the execution of a bond to dissolve an attachment is to vacate all proceedings touching the property and effects attached under Rev. St. 1889, § 569, there can be no recovery on the attachment bond for attorney's fees and other costs incurred thereafter in the defense of the suit on its merits.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by the state of Missouri, at the relation and to the use of Lamon D. H. Russell, against F. F. Fargo and the United States Trust Company. There was a judgment for defendants, and plaintiff appeals. Reversed.

L. A. Laughlin, for appellant. Dobson & McCune, for respondents.

BURGESS, J.

This is an action upon an attachment bond. The petition alleges execution of the bond by defendants; its conditions that breach was committed therein by failure of defendants to prosecute the suit without delay and with effect; the damage sustained by Fox, Lloyd, and O'Ferrall by reason of the wrongful suing out of the attachment; and the assignment of the bond by them to plaintiff. The damages alleged are for attorney's fees, $4,150; obtaining sureties on the bond to dissolve the attachment, the sum of $1,000; and for traveling and sundry expenses, the sum of $131.39. No damages are claimed for injury to the business of defendants in that suit. The defendants answered as follows: "They admit that on or about the 20th day of April, 1893, the defendant F. F. Fargo, as plaintiff, commenced an action by attachment in the circuit court of Jackson county, Mo., at Independence, against E. Fox, H. C. Lloyd, and O. G. O'Ferrall, doing business as E. Fox & Co., and defendants state that the said Fox, Lloyd, and O'Ferrall were engaged in an unlawful and illegal business, under the name of E. Fox & Co., to wit, the business of carrying on and conducting a lottery. That prior to the commencement of the said action at Independence the said E. Fox & Co. had, at various times and places, published and offered publicly in writing, by printing upon their tickets and price lists, an offer of reward, in words and figures as follows, to wit: `Fifteen Thousand Dollars Reward. We hereby offer a reward of $15,000 through the Metropolitan National Bank of Kansas City, Mo., to any one who can produce a prize ticket, bearing our signature, which has not been promptly cashed, upon presentment to us. E. Fox & Co., No. 2 Central Avenue, Kansas City, Kansas.' That the said action brought at Independence, Mo., was to recover the reward so offered by the said E. Fox & Co., said Fargo alleging in his second amended petition that the said E. Fox & Co. has sold to one J. Bieckhoff a ticket numbered 62,791, in the lottery of the said E. Fox & Co., which ticket had drawn a prize of fifteen thousand ($15,000) dollars; that the said plaintiff had produced and presented to the said E. Fox & Co. the said ticket numbered 62,791, and had demanded payment of the prize drawn thereby, which payment had been refused by the said E. Fox & Co., and plaintiff, Fargo, in that case, demanded judgment for said reward. A copy of said second amended petition is hereto attached, marked `Exhibit A.' And defendants further state that, in the said action brought against the said E. Fox & Co., the said defendants in that action demurred to the petition of said Fargo; that, after hearing arguments of counsel upon the said demurrer, the court sustained the demurrer upon the ground that the offer of a reward was tainted by the illegality of the business in which the said E. Fox & Co. were engaged, and that, inasmuch as the prize drawn by the tickets could not be collected, neither could they be forced to pay a reward offered, based upon their failure to pay their prizes; and thereupon judgment was rendered in favor of the said E. Fox & Co. against the said Fargo. Defendants further state thereupon the said Fargo perfected an appeal from the decision of the said circuit court to the supreme court of Missouri, but failed to prosecute said appeal, and, upon motion of the said E. Fox & Co., the said judgment was affirmed in the supreme court. Defendants further state that the only business in which the said E. Fox & Co. were engaged which was injured or damaged by reason of said original suit was the said illegal and unlawful business of carrying on a lottery. Defendants further state that whatever sums of money were expended by the said Fox, Lloyd, and O'Ferrall in the defense of the said original suit, in the matter of employing attorneys or furnishing bond or traveling expenses, was expended in the defense of an obligation growing out of an illegal and unlawful transaction, and in an effort to avoid the payment of a prize won in their lottery, or of a reward offered by them for any one who would detect them in failing to pay such a prize. Defendants further state that this action is not brought in the name of the real parties in interest. Defendants further state that the said plaintiff, Lamon D. H. Russell, has paid no consideration for the assignment to him of the cause of action upon the attachment bond in said original suit. Defendants deny each and every allegation contained in the said petition not above expressly admitted." Plaintiff filed motion to strike out all of defendants' answer except the following paragraph: "Defendants deny each and every allegation contained in the said petition not above expressly admitted." The motion was overruled, and plaintiff excepted. The case was tried by the court, a jury being waived. There was judgment for defendants, from which, after an unsuccessful motion by plaintiff for a new trial, he appeals.

In 1893, F. F. Fargo, one of the defendants, brought an attachment suit in the circuit court of Jackson county against E. Fox, H. C. Lloyd, and O. G. O'Ferrall, who were engaged in the lottery business in Kansas City, Kan., under the firm name of E. Fox & Co. The petition was in two counts, — the first count being to recover upon a lottery ticket sold by E. Fox & Co., which was alleged to have drawn a prize of $15,000.00; the second count being to recover a reward offered by said company, which was printed on the backs of their lottery tickets, and which they refused to pay. At the time of the institution of the suit, an attachment bond in accordance with the statute was given by Fargo, with the United States Trust Company as surety. Under the writ of attachment, various banks and express companies were summoned as garnishees. On the 1st day of July, 1893, after E. Fox, H. C. Lloyd, and O. G. O'Ferrall had appeared and pleaded to the action of F. F. Fargo, they executed their bond, with L. D. H. Russell and L. A. Berger as sureties, in the sum of $35,000, to pay plaintiff the amount he might recover; whereupon the attachment was dissolved. Plaintiff, Fargo, then dismissed his suit as to the first count in his petition. A demurrer was then sustained to the second count, and, Fargo refusing to plead further, final judgment was entered in favor of Fox, Lloyd, and O'Ferrall. Upon the trial of the case in hand, the assignment of the bond in question to plaintiff by Fox, Lloyd, and O'Ferrall, and the value of the services for which damages are claimed, were proven. It was then shown that Fox and his co-partners were, at the time of offering the reward of $15,000 by them to any one who could produce a prize ticket bearing their signature which had not been promptly cashed on presentation to them, engaged in the lottery business in the state of Kansas.

Over the objection of plaintiff, the court declared the law to be as follows: "The court declares the law to be that, under the evidence in this case, the plaintiff cannot recover;" and refused the following declaration of law asked by plaintiff, of which he complains: "(3) The court declares the law to be that the fact that E. Fox & Co., assignors of plaintiff, were engaged in the lottery business at the time the attachment was issued, constitutes no defense to this action."

It is insisted by plaintiff that the action of the court in denying the motion to strike out all that part of the answer setting up the fact that E. Fox & Co. were engaged in the lottery business was error, but this matter was not called to the attention of the court in the motion for a new trial, and cannot be raised in this court for the first time. It is not enough that exception was taken to...