Talbot v. Great Western Plaster Co.

• Court: Kansas Court of Appeals
• Writing for the Court: JOHNSON, J.
• Citation: Talbot v. Great Western Plaster Co., 152 S.W. 377, 167 Mo. App. 542 (Kan. App. 1912)
• Decision Date: 31 December 1912
• Parties: DUDLEY TALBOT, Respondent, v. GREAT WESTERN PLASTER COMPANY, Appellant

152 S.W. 377

167 Mo.App. 542

DUDLEY TALBOT, Respondent, v. GREAT WESTERN PLASTER COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 31, 1912

Appeal from Clay Circuit Court.--Hon. Francis H. Trimble, Judge.

AFFIRMED.

Judgment affirmed.

William C. Forsee and Martin E. Lawson for appellant.

Appellant's demurrer to the evidence should have been sustained. R. S 1909, Secs. 2880, 2881; Snyder v. Free, 114 Mo. 370; Seeger's Sons v. Thomas Bros., 107 Mo. 641; Dougherty v. Cooper, 77 Mo. 531; Grocery Co. v Ashton, 69 Mo.App. 469; Potter v. McDowell, 31 Mo. 69; Oberneier v. Tresseler, 19 Mo.App. 522; Eddy v. Baldwin, 32 Mo. 369; Hoffman v Nolte, 127 Mo. 135. In order to sustain the attachment, appellant was not required to show that these acts were done with intent to defraud; if their effect was to hinder, delay or defraud, they were fraudulent in law. Noyer v. Cunningham, 51 Mo.App. 194; Reid v. Pelletier, 28 Mo. 173; Douglass v. Cissna, 17 Mo.App. 44. Appellant was not entitled in any event to recover anything for lost time or earnings, because he did not plead any such element of damages. Zongker v. Mercantile Co., 110 Mo.App. 382; Goodloe v. Railroad, 120 Mo.App. 194; Wellmeyer v. Transit Co., 198 Mo. 527. The burden rests upon respondent to show his items of damages. As he cannot recover expenses for counsel fees except such as were incurred in defending the attachment branch of the case, it devolved upon him to show that any expense he incurred for fees were incurred upon that branch of the case. This could not rest upon mere conjecture. Fry v. Estes, 52 Mo.App. 1; State v. McHale, 16 Mo.App. 483; State v. McKeon, 25 Mo.App. 680.

Andrew F. Evans and George H. English, Jr., for respondent.

(1) The former decision in 151 Mo.App. 538 is res adjudicata of this appeal. Van Fleet's Former Adjudication, Sec. 678; Esler v. Railroad, 115 Mo.App. 574; Rigsbey v. Oil Co., 130 Mo.App. 128; Turner v. Edmonston, 212 Mo. 377. (2) The voluntary dismissal of the attachment subjects appellant to liability for the actual damages and precludes inquiry into the truth of the affidavit upon which the attachment was issued. Talbot v. Great Western P. Co., 151 Mo.App. 538; Bennett v. Bank, 61 Mo.App. 297; State to use v. McKeon, 25 Mo.App. 667; Sannes v. Ross, 105 Ind. 558; 5 N.E. 699; Vurpillat v. Zehner, 2 Ind.App. 397, 28 N.E. 556; Steinhardt v. Leman, 41 La. Ann. 835, 6 So. 665. (3) (a) Talbot's application of $ 300 to his individual debt was not ground for attachment, having been made with his partner's consent and before dissolution. The contract claimed to show dissolution is inadmissible. Minter Bros. v. Railway Co., 56 Mo.App. 282; Brick Co. v. McTaggert, 76 Mo.App. 347; 2 Elliott on Ev., Secs. 1427, 1433, 1449; Traber v. Hick, 131 Mo. 180; Pierce v. Georger, 103 Mo. 540; Farrell v. Brennan, 32 Mo. 328; 1 Greenl. Ev., Sec. 562; France v. Lucy, 1 R. & M. 341; Jones v. Edwards, McClel. & Y. 139; Rose v. King, 5 S. & R. (Pa.) 241; 6 Am. & Eng. Ency. Pl. & Pr. 797. (b) Appellant cannot claim that the conveyance to the corporation of the assets of the partnership was a ground for attachment, having recognized the validity of such transfer by accepting payment from the corporation on its debt. Gutzwiller v. Lackman, 23 Mo. 168; Torreyson v. Turnbaugh, 105 Mo.App. 439; Thompson v. Cohen, 127 Mo. 215; Glass Co. v. Baldwin, 27 Mo.App. 44; Burnham-Munger v. Smith, 82 Mo.App. 35; Valentine v. Becker, 43 Mo. 582. (c) Appellant cannot claim that the transfer to Brent of the shares of stock issued to Talbot was a ground of attachment, for it recognized the validity of that transaction by becoming the purchaser of said shares at the execution sale under its judgment against Talbot. Tyler v. Hamblin, 58 Tenn. (11 Heisk.) 152; Sickman v. Abernathy, 14 Colo. 174; 23 P. 447; Theriot v. Michel, 28 La. Ann. 107.

OPINION

JOHNSON, J.

--Plaintiff sued to recover actual and punitive damages for the wrongful and malicious prosecution of a suit by attachment. The case has been here on two former appeals, the first of which was taken by defendant and the second by plaintiff, and on each occasion we reversed the judgment and remanded the cause on account of errors in instructions. [86 Mo.App. 558 and 151 Mo.App. 538]. After the last reversal plaintiff amended his petition in conformity with a suggestion in the last paragraph of our opinion. Defendant answered and before trial the parties agreed to waive a jury and to submit the case on the evidence introduced at the former trial and the agreed additional testimony of a witness relating to the subject of the amendment to the petition. Plaintiff also agreed to waive his demand for punitive damages and the cause submitted to the court was the alleged wrongful act of defendant in causing a writ of attachment to be issued in aid of an action against plaintiff begun by him in a justice court and in having certain shares of stock in a private corporation seized under that writ as the property of plaintiff. Plaintiff claims that he sustained actual damages in consequence of the wrongful attachment. The court found in his favor and assessed his damages at twenty-five dollars. Defendant appealed.

The action is not on the attachment bond given by defendant but is in the nature of a common law action on the case for the wrongful act of defendant in causing plaintiff's property to be seized under a process which defendant caused to be issued and levied on a ground which, in fact was nonexistent. Some time after the seizure, defendant voluntarily dismissed the attachment proceeding but not until plaintiff had incurred expense and loss in preparing to contest the ground of the attachment. At the request of defendant the court gave declarations of law to the effect that the mere dismissal of the attachment proceedings was not conclusive evidence of a wrongful attachment and that plaintiff could not recover if any ground of attachment, in fact, existed. We do not find it necessary to express our opinion on the question of the soundness of this rule. In rendering judgment for plaintiff, the court found, as a fact that when the writ was sued out there was no ground of attachment. This finding is supported by substantial evidence and, therefore, is not open to review on appeal. But defendant complains of the refusal of the court to hold that plaintiff could not recover if defendant had probable cause for a belief that he had a true ground for procuring a writ of attachment. Our statute (Sec. 2294, R. S....