Wheeler Sav. Bank v. Tracey

• Decision Date: 09 November 1897
• Citation: 42 S.W. 946,141 Mo. 252
• Parties: WHEELER SAV. BANK v. TRACEY et al.
• Court: Missouri Supreme Court

42 S.W. 946

141 Mo. 252

WHEELER SAV. BANK v. TRACEY et al.

Supreme Court of Missouri, Division No. 2.

November 9, 1897.

ATTACHMENT — INTERPLEA — RES JUDICATA — ACTIONS — SPLITTING CAUSES.

1. An action for wrongful attachment of chattels, all taken at the same time and under the same levy, cannot be maintained against the officer and the attaching creditor, where plaintiff interpleaded in the attachment action, claiming part of the property, but not that for which damages are sought, though the officer was not nominally a party to the attachment action, and a portion of the property was attached by garnishment, and was claimed by plaintiff under different titles.

2. One suing for wrongful attachment cannot escape the effect of his failure to assert his right to the property by his interplea in the attachment action by showing that he had no title thereto at that time, when it appears that he was the owner of the beneficial interest therein, and controlled the same.

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

Action by the Wheeler Savings Bank against John P. Tracey, W. I. Carpenter, and A. G. Flournoy, for wrongful levy of attachment. Judgment for defendants, and plaintiff appeals. Affirmed.

Dobson & McCune, for appellant. Downs, Bower & Barnes, for respondents.

GANTT, P. J.

This is an action for damages for the alleged wrongful levy of a writ of attachment upon certain personal property situated in the factory of the Davis Manufacturing Company, in Brookfield, Mo., upon which plaintiff bank claimed to have a chattel mortgage, duly recorded. The defendants Carpenter and Flournoy were the plaintiffs in the attachment suit in the United States circuit court for the Western division of the Western district of Missouri, in which the defendant Tracy, as marshal, levied upon said personal property, described in said mortgage and the petition in this case as follows: "All and singular, all the manufactured goods now in the possession of said manufacturing company, consisting of doors of various kinds, styles, and patterns; windows, sash, blinds, transoms, railings, moldings; and, in fact, every manufactured article made by said company to that date, and on hand in the wareroom, factory, or mill; also, all the glass, lumber, and material of every kind now on hand, belonging to said company, for use about its business." The petition alleges that said levy upon said goods, as against one C. L. Spalding, who held said mortgage, was wrongful and unlawful; that the defendants kept and retained said goods, and have not returned them to Spalding or his assignee; that on the 20th of December, 1893, Spalding assigned the note of the Davis Manufacturing Company to the plaintiff, and, at the same time, his right of action against defendants. Damages are laid at $3,500. Among other defenses pleaded in the answer, it was averred that on the 6th day of November, 1893, the plaintiff herein filed its interplea in the attachment suit brought by these defendants against the Davis Manufacturing Company in the United States court, for all articles of personal property averred to have been seized and taken by the defendant Tracey, as marshal, in said attachment suit, which included the goods mentioned in the petition; that, in said suit of interpleader, plaintiff recovered judgment for certain personal property on March 9, 1894; that all the taking and seizing of property under said writ was one transaction, and occurred at the same time and place, and plaintiff, having made its election as to the manner and object of its suing, is now barred from suing again upon said cause of action, and the judgment on said interplea, as to the matters and things herein, operated as res adjudicata. Reply of general denial was filed.

Before noticing various other defenses set up in the answer, and the numerous questions discussed, both orally and in briefs, by the learned counsel, we deem it highly important to examine this defense of res adjudicata, because, if sustained, it will not be necessary to look further. To sustain this plea the defendants offered in evidence the interplea and judgment thereon in case No. 1,913 in the United States circuit court. The interplea is entitled, "W. I. Carpenter et al. v. Davis Manufacturing Company (Wheeler Savings Bank, Interpleader)." Among other things, the interpleader states "that under the writ of attachment issued in the above cause the United States marshal [Tracey] has levied upon and seized as the property of the defendant [the Davis Manufacturing Company] in said cause, the following described credits, to wit," various book accounts, contained in the ledger of said company, and which were duly sold and assigned to this interpleader before said attachment writ was levied, etc. A long list of the accounts, the name of the debtor, and the amount of each, are then stated. It then averred that the company had sold all of said accounts to the interpleader, and the defendant in attachment had no interest in them when the writ was served, and prayed that said accounts might be released from said levy. Upon a trial of said interplea the United States court found that, of said accounts attached by its marshal, the Wheeler Savings Bank was the owner of, and entitled to certain of, said accounts, which had been assigned to it in writing by the Davis Company, amounting to $4,254.90, and was not the owner of certain unassigned accounts attached by said marshal, amounting to $2,171.38. The plaintiff offered and read in evidence the marshal's return on the writ of attachment in the case of Carpenter and Flournoy against the Davis Company in the United states court, from which it appears that on the 11th day of July, 1893, at 1:27 o'clock p. m., he levied upon the property described in this action and the chattel mortgage, and also, at the same time, and by the same levy, upon the accounts for which plaintiff bank interpleaded in said cause in the United States court, as above mentioned. In said interplea, plaintiff did not sue for the goods attached. Upon this state of facts, the defendants insist that the plaintiff bank has split its cause of action, and, having had its redress by one action, cannot maintain this second action, which grows out of the same levy, by the same marshal, and at the instance of the same plaintiffs. No rule of law is better settled than that a single cause of action cannot be split in order that separate suits may be brought for the various parts of what constitutes but one demand, and the rule is founded upon the plainest and most substantial justice. It is an old maxim of the common law that "no one ought to be twice vexed for one and the same cause." It has always been regarded as a matter of concern to the state that litigation should have an end, and that no citizen should be unnecessarily harassed with a multiplicity of suits. That such has been the law of this state for many years, the decisions of this court all attest. Wagner v. Jacoby, 26 Mo. 532; Transportation Co. v. Traube, 59 Mo. 355; Moran v. Plankinton, 64 Mo. 337; Taylor v. Heitz, 87 Mo. 660. And our adjudications are in harmony with the great weight of authority in this country. Knowlton v. Railroad Co., 147 Mass. 606, 18 N. E. 580; Baird v. U. S., 96 U. S. 430; Brannenburg v. Railroad Co., 13 Ind. 103. And it has been uniformly held that a single tort gives only one cause of action, and the damages resulting from one and the same cause must be assessed and recovered in one...