Wheeler Savings Bank v. Tracey

• Citation: 42 S.W. 946,141 Mo. 252
• Parties: Wheeler Savings Bank, Appellant, v. Tracey et al
• Decision Date: 09 November 1897
• Court: United States State Supreme Court of Missouri

42 S.W. 946

141 Mo. 252

Wheeler Savings Bank, Appellant, v. Tracey et al

Supreme Court of Missouri, Second Division

November 9, 1897

Appeal from Jackson Circuit Court. -- Hon. James H. Slover, Judge.

Affirmed.

Dobson & McCune for appellant.

(1) The action of the marshal in seizing the property and removing it was a breach of the conditions of the mortgage, and the mortgagee became thereby entitled to possession. Huiser v. Beck, 55 Mo.App. 668. (2) A pre-existing debt is a sufficient consideration to support a mortgage. Brocking v. Straat, 17 Mo.App. 296; Davis v. Carson, 69 Mo. 609; Way v. Braley, 44 Mo.App. 457; Huiser v. Beck, 55 Mo.App. 668. (3) If the demand results from several and distinct transactions, an action may be maintained on each transaction. Railroad v. Traube, 59 Mo. 355; Hoffmann v. Hoffmann's Ex'r, 126 Mo. 486; West v. Moser, 49 Mo.App. 201; Flaherty's Adm'r v. Taylor, 35 Mo. 447; Alkire Gro. Co. v. Tagart, 60 Mo.App. 389; Union Switch Co. v. Johnson, 72 F. 147. (4) Nor is it meant by this rule that the plaintiff must join in one action every demand which under the rules of law he might join. Steiglider v. Railroad, 38 Mo.App. 511; Skeen v Thresher Co., 42 Mo.App. 158. (5) A judgment is not res adjudicata in a subsequent suit by the same plaintiff against a different defendant. Henry v. Woods, 77 Mo. 277; Quigley v. Bank, 80 Mo. 289; McGill v Wallace, 22 Mo.App. 675. (6) The recovery of judgment by an interpleader in attachment proceedings will be no bar to an action by the interpleader against the attaching officer for the wrongful seizure. Clark v. Brott, 71 Mo 473; Taylor v. Hines, 31 Mo.App. 631. (7) A corporation, though insolvent, may, if it retains dominion over its property, dispose of it as an individual and prefer one creditor to others, if it does so in good faith to secure, or in payment of, a bona fide debt. Schufeldt v. Smith, 131 Mo. 280; Meyer v. Bed Co., 130 Mo. 188; Waggoner-Gates Co. v. Commission Co., 128 Mo. 473; Slavens v. Drug Co., 128 Mo. 341; Alberger v. Bank, 123 Mo. 313. (8) The stockholders alone have power to adopt by-laws, and the directors have no such power. Watson v. Printing Co., 56 Mo.App. 145; Trust Co. v. Lumber Co., 118 Mo. 447; R. S. 1889, secs. 2506, 2508.

Downs, Bower & Barnes for respondents.

(1) This is the same cause of action involved in the interplea filed by appellant in the United States court November 6, 1893, and decided against it in part. 21 Am. and Eng. Ency. Law, p. 137; Richardson v. Watson, 23 Mo. 34; Krenchi v. Dehler, 50 Ill. 177. It results from the same and not "distinct transactions." Appellant can not therefore split its cause of action. Funk v. Funk, 35 Mo.App. 246; Moran v. Plankinton, 64 Mo. 337. (2) These are the same parties, both plaintiff and defendant, as in the interplea. State ex rel. v. Barker, 26 Mo.App. 487; Burgert v. Borchert, 59 Mo. 80; Richardson v. Watson, 23 Mo. 34. (3) The right to sue for damages for wrongful levy does not pass by an indorsement or assignment of the note, after the right accrues. 2 Cobbey, Chattel Mortgage, sec. 646; Bowers v. Bodley, 4 Ill.App. 279. The Wheeler Savings Bank therefore was the real party in interest, and Spaulding the trustee of an express trust at most; the right to sue for damages to the mortgaged property accrued at the time of indorsement, was in the bank at the time it filed its interplea, November 6, 1893, and at all other times. R. S. 1889, secs. 1990, 1991. (4) The Wheeler Savings Bank was at best not more than an undisclosed principal, and as such could sue at all times. Snider v. Express Co., 77 Mo. 523. (5) The act of the officer in levying upon the book accounts was one and the same in every respect as that by which he levied upon the mortgaged property. The levy upon book accounts is more than a garnishment. Fleisch v. Bank, 45 Mo.App. 230. (6) The source of appellant's title to the accounts being assignment, and the source of its title to the mortgaged property being the mortgage, can not make the act of the officer two causes of action. (7) Spaulding, being the agent and vice-president of the appellant mortgagee, could not be counted, either to constitute a quorum or a majority vote at the meeting of July 8, 1893, authorizing the loan. Hill v. Rich Hill Mining Co., 119 Mo. 9; Bensiek v. Thomas, 66 F. 111. (8) Besides the rule is not charged by the statute, as there was no quorum present under the statute, without counting Spaulding. R. S. 1889, sec. 2510; Hill v. Rich Hill Mining Co., 119 Mo. 9.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

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, Missouri, 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 Tracey, as marshal, levied upon said personal property, described in said mortgage and in 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, mouldings, and in fact every manufactured article made by said company to this date, and on hands in the wareroom, factory or mill, also all the glass, lumber and material of every kind now on hands belonging to said company for use about its business."

The petition alleges said levy upon said goods as against one C. L. Spaulding, who held said mortgage, was wrongful and unlawful; that the defendants kept and retained said goods and have not returned them to Spaulding or his assignee; that on the twentieth of December, 1893, Spaulding 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 sixth 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 number 1913 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 is then stated. It then averred that the company had sold all of said accounts to 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 eleventh 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 can not 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 can not be split in order that separate suits may be brought for the various parts of what constitutes but one demand and...