State v. United States Fidelity & Guaranty Co.

• Decision Date: 01 February 1909
• Citation: 115 S.W. 1081,135 Mo. App. 160
• Court: Missouri Court of Appeals
• Parties: STATE ex rel. HINDE v. UNITED STATES FIDELITY & GUARANTY CO.

115 S.W. 1081

135 Mo. App. 160

STATE ex rel. HINDE v. UNITED STATES FIDELITY & GUARANTY CO.

Kansas City Court of Appeals. Missouri.

February 1, 1909.

1. EXEMPTIONS (§ 61) — PARTNERSHIP PROPERTY.

The rule that there is no right of exemption in partnership property applies to an action of an individual creditor of a partner as well as to that of a firm creditor.

2. EXEMPTIONS (§ 119)—NATURE OF RIGHT— TIME FOR EXERCISING.

Since exemption is a personal privilege that cannot be exercised until the officer comes to seize the property under a writ of execution or attachment, the court in an action against a surety on an attachment bond for wrongful attachment could not adjudicate plaintiff's right of exemption to a part of the judgment recovered by the attaching creditor on the merits, which judgment had been assigned to the surety and was interposed as a set-off.

3. SET-OFF AND COUNTERCLAIM (§ 22)—STATUTORY PROVISIONS.

The right of set-off does not come from the common law, but is a creature of statute, and Rev. St. 1899, § 4487 et seq. (Ann. St. 1906, p. 2457), dealing with the subject, does not give a defendant the right to set off a demand ex contractu against one ex delicto.

4. ACTION (§ 27)—ACTION ON ATTACHMENT BOND — NATURE OF ACTION — CONTRACT OR TORT.

An action for damages on an attachment bond, though it requires the commission of a tort to constitute a breach of the contract, is nevertheless an action ex contractu, not ex delicto.

5. PRINCIPAL AND SURETY (§ 144)—ACTION ON ATTACHMENT BOND—SET-OFF.

In an action against the surety on an attachment bond for wrongful attachment, defendant was entitled under the statute to set off the judgment recovered on the merits by the attaching creditor and assigned to defendant.

6. ATTORNEY AND CLIENT (§ 191)—LIEN FOR COMPENSATION—SET-OFF BETWEEN PARTIES.

In an action against the surety on an attachment bond for wrongful attachment, the lien of plaintiff's attorneys, given by Laws 1901, p. 46 (Ann. St. 1906, §§ 4937-1, 2), on the cause of action for their fees, could not defeat defendant's right to set off the judgment recovered by the attaching creditor on the merits and which had been assigned to defendant; the amount of such judgment exceeding the amount of plaintiff's demand assessed by the court on the attachment bond.

Error to Circuit Court, Holt County; W. C. Ellison, Judge.

Action by the State, on the relation of William B. Hinde, against the United States Fidelity & Guaranty Company. There was a judgment, and defendant brings error. Reversed and remanded.

See, also, 122 Mo. App. 218, 99 S. W. 25.

Ringoldsky & White and T. C. Dungan, for plaintiff in error. Charles F. Booher, R. B. Bridgeman, and Ivan Blair, for defendant in error.

JOHNSON, J.

Action on an attachment bond to recover damages sustained by plaintiff in consequence of the wrongful levy of a writ of attachment on his property. The cause is before us on writ of error sued out by the defendant, the surety on the bond. In 1904 plaintiff, W. B. Hinde, a retail clothing merchant in Holt county, purchased a bill of clothing amounting to $833.30 of Fleisher Bros., an eastern wholesale concern. Afterward he discontinued the clothing business, and in partnership with B. B. Simmons began the operation of a drug store. He did not pay the Fleisher Bros. account, and in August, 1905, that firm brought suit on the account in the circuit court of Holt county, and caused a writ of attachment to be issued in aid of the action and levied on the stock of drugs. On account of this levy a receiver of the stock was appointed in a suit brought by Simmons to wind up the affairs of the partnership, the stock was sold, the proceeds were exhausted in paying the debts of the partnership and the expenses of the suit, and the partnership was dissolved. A plea in abatement was filed by Hinde in the attachment suit, a trial of the plea resulted in a judgment for Hinde, an appeal to this court was prosecuted by Fleisher Bros., and we affirmed the judgment. 122 Mo. App. 218, 99 S. W. 25. A trial of the suit on the merits resulted in a judgment for Fleisher Bros. in the sum of $855, and this judgment remains wholly unsatisfied; Hinde, the judgment debtor, being insolvent. After the final disposition of the plea in abatement and of the suit on the merits, Hinde brought the present action on the attachment bond. He alleges he was damaged in the sum of $3,000 by the wrongful levy which resulted in the sacrifice of the partnership property and the destruction of a profitable business, and in the further amount of $600 on account of expenses, including attorney's fees, incurred in his defense of the issues raised by the attachment affidavit and the plea in abatement. The prayer of the petition is for the recovery of $1,700, the penalty of the bond.

Among other defenses, it is alleged in the answer of the defendant surety that the judgment obtained by Fleisher Bros. against the plaintiff is unsatisfied and has been assigned and transferred to defendant, who interposes it as "an equitable set-off and counterclaim to any claim of relator herein." In the reply plaintiff alleges that he is the head of a family, is a resident of this state, is insolvent, and that he owns no property "except his damages sued for in this action." He "elects to take and hold as his exemptions, under section 3162, Rev. St. 1899 (Ann. St. 1906, p. 1797), his cause of action as set forth in the petition in this case to the amount of $300." Further, he alleges that he agreed to pay his attorneys $600 for their services in conducting this suit, and that the attorneys have a lien on the cause of action for their fees superior to any right of setoff or counterclaim defendant may possess. A jury was waived, and in the judgment entered the court found and adjudged that plaintiff was damaged by the wrongful levy of the writ of attachment in the sum...