82 Kan. 406 | Kan. | 1910
This was an action to recover damages for the. wrongful garnishment of the funds and property of appellant. It was alleged that the State Bank of Commerce filed an affidavit for attachment and caused a garnishment summons to be issued and served on the Marion State Bank, thus tying up a deposit of appellant in that bank, as well as two promissory notes, and that when certain checks on the deposit which came into the hands of the State Bank of Commerce prior to the garnishment proceeding were presented they were necessarily refused. It was alleged, too, that when the garnishment proceeding was tried the district court decided in favor of appellant, dissolving the garnishment, and that upon appeal this decision was affirmed. (Bank v. Dody, 71 Kan. 98.) In the present action the court instructed the jury that appellant was entitled to recover any damages necessarily incurred in releasing his property from the garnishment — that is, he could recover, first, his personal expenses, including the value of his time, if any had been proven; and, second, he could recover a reasonable attorney’s fee incurred by him in securing the release of his property, and the necessary expenses of his attorney ; and, third, he might recover the interest upon the money, as well as the value of the property impounded by the garnishment. In the findings the jury allowed him $245.35 as interest on the notes; $185.40 as interest on the money; and $80 as attorney’s fees. Appellant, who was a country merchant and also engaged in the cattle business, in- ^ sisted that he had sustained a loss of profits by reason of the wrongful garnishment, and also that his credit was impaired by the same cause, for both of which he was entitled to recover. The court, however, instructed the jury that these things were too remote, speculative and uncertain to form the basis of a recovery, and of this ruling complaint is made.
The appellant was a merchant, and was also engaged in carrying on a farm as well as the cattle business. How far the detention of the money and notes may have lessened his profits as a merchant, farmer and stockman is largely a matter of conjecture. How much of the losses in his general business was attributable to a tying up of a part of his capital and how much to other causes would have taken the jury into the region of speculation. It is altogether too remote and uncertain to form a safe basis of recovery, and the same is true of the alleged injury to credit. (Casper v. Klippen, 61 Minn. 353; Union National Bank of Chicago v. Cross and another, 100 Wis. 174; Myers v. Farrell, 47 Miss. 281; Trawick v. The Martin Brown Company, 79 Tex. 461; Mitchell v. Harcourt et al., 62 Iowa, 349; Davidson v. Oberthier, 42 Tex. Civ. App. 337; Crymble v. Mulvaney, 21 Colo. 203; 4 Sutherland Dam., 3d ed., § 1101; see, also, monographic note to Tisdale v. Major, 68 Am. St. Rep. 266, 272.)
The value of the use of the property may be recovered, and where, as here, it consisted of money and notes that were withheld from appellant, the interest thereon from the time they were detained under the garnishment is a fair measure of such value. Appellant invokes the rule of liability which is applied where a bank refuses to pay money to a depositor, but as appellant had no deposit with appellee that rule does not apply.
In its cross-petition in error appellee complains of a ruling of the trial court as to the allowance of attorney’s fees, but as its proceeding was brought under the old code, and not within a year from the time the motion
The judgment of the district court is affirmed.