Tamblyn v. Johnston

• Decision Date: 02 November 1903
• Docket Number: 1,854.
• Citation: 126 F. 267
• Parties: TAMBLYN et al. v. JOHNSTON.
• Court: U.S. Court of Appeals — Eighth Circuit

126 F. 267

TAMBLYN et al. v. JOHNSTON.

No. 1,854.

United States Court of Appeals, Eighth Circuit.

November 2, 1903

This action was brought by Lyt T. Johnston, the defendant in error, against George S. Tamblyn and Robert L. Tamblyn, doing business as partners under the name of Tamblyn & Tamblyn, the plaintiffs in error, and resulted in a verdict in favor of the plaintiff in the lower court. The original petition was amended by leave of court during the progress of the trial and the trial must be regarded as having taken place under the amended pleadings. The amended petition recited, in substance, that the plaintiff was engaged in the business of breeding, raising, buying, and selling cattle at his ranches in Texas and elsewhere; that the defendants were engaged in the live stock commission business in Kansas City, Mo.; that on July 12, 1900, the plaintiff was indebted to the defendants in the sum of about $5,000 the exact amount of which indebtedness was then unknown; that on said day he executed a note in the sum of $5,100, due 90 days after date with interest from maturity, under an agreement that whatever difference, if any, there should be between the true amount of his indebtedness, when ascertained, and the amount called for by the face of the note, should be adjusted by the parties when the exact amount of the indebtedness was ascertained; that it was subsequently ascertained that the true amount of his indebtedness was $4,870, the difference between the true amount of his indebtedness and the face of the note being $230; that on November 2, 1900, he paid on account of said note, and the defendants accepted, the sum of $2,895.89; that, after the payment of said $2,895.89 upon his indebtedness, he was the owner and in possession of 333 head of cattle, to wit, calves, which he had shipped and were then in transit from his ranch in Texas to the town of Alexis, in the state of Illinois; that their market value on the day they should have arrived at their destination was $20 per head, aggregating $6,660; and that he had already arranged for their sale at Alexis, all of which the defendants well knew.

The facts so recited in this petition were followed by the following allegation: 'That when said cattle so in transit from Texas to said Alexis arrived at East St. Louis in Illinois, and were placed in the temporary possession of the St. Louis National Stockyards Company at that place as the bailee of plaintiff, and at a time when defendants well knew that plaintiff's indebtedness to them did not exceed said balance of $1,974.11, to wit, on the 3rd day of November, 1900, said defendants, for the purpose of vexing and harassing plaintiff, and ruining him in his good name trade, and business, did willfully, wrongfully, wantonly, maliciously, and without probable cause therefor, (1) institute in the city of East St. Louis, in the county of St. Clair and state of Illinois, which said city court was then and there a court of general jurisdiction, their suit by attachment against this plaintiff, styled, 'Tamblyn & Tamblyn against L. T. Johnston;' (2) sue out of said city court a writ of attachment and garnishment in said cause against the property of this plaintiff then in said state of Illinois; (3) cause to be seized and attached, under and by the service of the garnishment side of said writ upon said St. Louis National Stockyards Company, then holding said cattle as plaintiff's bailee as aforesaid, all of plaintiff's said cattle, of the value aforesaid; and (4) cause and procure said National Stockyards Company to sell and dispose of said cattle, of the value of $6,660, as aforesaid, which it did on the 5th day of November, 1900, at and for the sum of $3,743.41. ' The petition further averred, in substance, that, by reason of the wrongful and malicious acts of the defendants in thus suing out and causing the levy of said writ of attachment and garnishment, the plaintiff had been compelled to employ counsel to represent him in the protection of his rights, and had sustained damage on that and other accounts in a large sum of money, for which he prayed judgment.

The facts which the evidence introduced at the trial tended to establish are these; Johnston, the plaintiff below, was a cattle raiser and breeder of cattle residing in Texas. The defendants Tamblyn were cattle commission men doing business in Kansas City, Mo. On November 3, 1900, Johnston had executed a note for $12,523, due December 18, 1900, which the Tamblyns had sold to a third party, without recourse, and another note, for $300, due the same day. The Tamblyns held another note against Johnston, in the sum of $5,100, which fell due October 9, 1900, and was entitled to a credit in the sum of $230. All of these notes were secured by a mortgage on a large herd of cattle in Johnston's possession in the state of Texas, which was worth about $50,000. Johnston made a shipment of 135 or 138 head of cows and bulls to the Tamblyns at East St. Louis, Ill., to be sold, and the proceeds applied on the note for $5,100. These cattle arrived in East St. Louis on the morning of November 3rd, and were sold in the stockyards between 11 and 1 o'clock of that day; the net proceeds realized from the sale, and applicable to the payment of the note for $5,100, being $2,895.89. At the same time Johnston shipped six car loads of calves to Alexis, Ill., to his brother-in-law, which arrived in East St. Louis on the same morning with the other cattle. The calves were not covered by the Tamblyn's mortgage, but the cows and bulls were. About 9 o'clock on the morning of November 3rd, the defendants Tamblyn began an auction of attachment against Johnston in the city court of East St. Louis, St. Clair county, Ill., on the ground that he was a nonresident of the state; alleging in their affidavit for attachment that, after allowing all just credits and set-offs, he was indebted to them in the sum of $5,100. A writ of attachment was issued, which was levied upon the calves then in the possession of the National Stockyards Company, by garnishing it as bailee of the calves. At the time the defendants instituted this suit of attachment, they knew that the cows and bulls were in the hands of their consignee, and were to be sold, and the proceeds applied on the note for $5,100. They did not at the time own the note for $12,523, which was not due until December 18, 1900; having sold it, without recourse, to the Boston & Kansas City Brokerage Company. After the levy of the attachment the Tamblyns pressed Johnston for the payment of the $12,000 note at maturity, as if they were the owners of the same, although they did not own it, and were not liable thereon. Although Johnston applied to them to extend the time for the payment of the note, supposing them to be the owners thereof, they declined to do so, and urged him to release his claim to the proceeds of the calves, then in the hands of the garnishee, so that it could be applied on the indebtedness which they held. The attachment suit pursued its regular course, publications having been made to bring in the defendant in that suit, until January 7, 1901, when, in pursuance of a stipulation which was filed, a judgment was rendered in favor of the Tamblyns and against Johnston for costs; the judgment entry reciting that the debt had been paid since the suit was brought, and reciting, further, that the stockyards company be discharged as garnishee. The stipulation in pursuance of which such judgment was entered was in the following form: 'The debt sued on in the above-styled cause having been paid off since the institution of this suit, it is agreed that plaintiffs have judgment for their costs, and that the garnishee, the St. Louis National Stockyards Company, be discharged. ' About the same date, or prior thereto, the $12,000 note was sent down to Texas for collection, and was there paid by Johnston. When thus paid, it was credited as of November 1, 1900, with the proceeds of the sale of 135 head of cows and bulls; the credit indorsed thereon being in the following form: 'By 138 or 137 cattle shipped to St. Louis, Illinois, sold in yard there, $2,895.89. ' The other notes, for $5,100 and $300, respectively, bore no credit at all, but were marked, 'Paid.'

To reverse the judgment which was rendered against them on a trial before a jury in the lower court, the defendants have brought the case to this court on a writ of error.

L. H. Waters and George F. McNulty (Charles P. Wise, on the brief), for plaintiffs in error.

K. R. Craig (H. C. McDougal, Frank P. Sebree, and S. C. Price, on the brief), for defendant in error.

Before SANBORN, THAYER, and VAN DEVANTER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

The complaint which was filed in the Circuit Court, the substance of which is given above, states a good cause of action for the malicious abuse of civil process, as distinguished from an ordinary action for malicious prosecution. The gist of the complaint is that the defendants below, who are the plaintiffs in error here, well knowing that the plaintiff below was only indebted to them in the sum of $1,974.11 commenced an action against him by attachment in a foreign jurisdiction, charging the indebtedness to be $5,100, and causing a levy to be made on property of the plaintiff then in transit which was of the value of $6,600, and that they did so 'wrongfully, wantonly, and maliciously,' for the purpose of injuring the plaintiff in his good name and credit. We entertain no doubt that the complaint discloses a legal wrong, for which an action will lie. According to the great weight of authority and reason, no action will generally lie for the institution and prosecution of a civil suit, even if it is brought and prosecuted...