Engelke & Feiner Milling Co. v. Grunthal

| Fla. | Jun 15, 1903

Hocker, J.

(after stating the facts). — The first assignment .of error is “the court erred in denying defendant’s motion to quash the writ of summons and set aside the service herein filed March 1st, 1897.” In the case of The Silver Springs, Ocala & Gulf Railroad Company v. Van Ness, decided at the January term of the present year, this court held that “a defect in the service or sheriff’s return constitutes no ground for quashing the writ or abating the suit.” The implication is that the motion should be addressed to the service, and seek to quash or abate it, and not the writ. Applying the ruling in the cited case, we find no error under this assignment. Whether a plea in abatement is not the proper mode of defense when the facts relied on do not appear of record — Quaere?

The second assignment of error is that the court erred in sustaining the plaintiff’s demurrer to defendant’s “further plea,” following the plea of not guilty filed July 10th, 1899. This evidently refers to the plea filed May 1st, 1899, the demurrer to which was filed July 10th, 1899. We think it evident that the demurrer to this “further plea” was properly sustained.

The third assignment of error is “the court erred in making the order refusing and denying defendant’s application to file the additional pleas requested and tendered May 2nd, 1900, and in refusing to allow defendant to plead the matter set up in said proposed pleas.” We do not deem it necessary to make a critical examination of each of these pleas, as we think the facts set forth could have been shown under the plea of “not guilty.” We do not think the court erred in refusing leave to file these pleas.

The eighth assignment of error is “the court erred in refusing to allow the defendant to introduce testimony by the witness R. F. Bowden, and the records, showing or tending to show that the said property so seized by the sheriff under said writ of attachment was not returned to the plaintiff when said attachment was dissolved for the reason that the said sheriff held the said property and retained custody of it under and by .virtue of two other writs of attachment in favor of the Merchants’ National Bank against said plaintiff, issued out of the same court at practically the same time as defendant’s writ, or immediately thereafter, and levied on identically the same property one minute after defendant’s writ of attachment was levied, and not dissolved until after defendant’s said attachment was dissolved.”

The ninth assignment of error is “the court erred in not permitting the defendant to introduce testimony by the witness R. F. Bowden, and the records, to show or tending to show that the sheriff had in his possession the said two writs of attachment of the Merchants National Bank against the goods, chattels, lands and tenements of plaintiff when he exhibited defendant’s writ to the plaintiff and that he exhibited said two other writs immediately thereafter, and levied them on the same property, removed the said property and held it under all said writs, and after the dissolution of defendant’s attachment said property was sold under proceedings in the case in attachment of Merchants National Bank against the said plaintiff, and all proceeds went to said plaintiff and said Merchants National Bank except said sheriff’s costs and defendant got nothing.”

The eighth and ninth assignments of error we consider together.

The defendant introduced R. F. Bowden and offered to prove by him that on December 18th, 1895, he was the . sheriff of Duval county, Florida; that late in the afternoon of December 18th, 1895, the clerk of the Circuit Court of Duval county, Florida, handed him three writs of attach'ment against I. Grunthal, doing business as I. & H. Grunthal — one writ for $565.83 in favor-of Engelke & Feiner Milling Company (plaintiff in error) — one writ of $1,994,10 in favor of the Merchants National Bank of Jacksonville, and the third writ of $2,467.47 in favor of the Merchants National Bank of Jacksonville; that said three writs were handed to him at one and the samé time; that he took the three writs and went down to Grunthal’s store and exhibited the several writs in the order named to Grunthal; that he levied successively upon said goods under the three writs of attachment as shown on his return to each writ, the same inventory of goods levied upon; that afterwards, on February 3rd, 1896, the writ in favor of the Engelke & Feiner Milling Company was dissolved; that he knew this writ had been dissolved on February 3rd, 1896; that he did not turn the goods back to Grunthal because he held-the same identical goods under the said other writs in favor of the Merchants National Bank of Jacksonville; that the Engelke & Feiner Milling Company did not request him to hold the goods after its writ had been dissolved; but, on the contrary, notified him that its writ had been dissolved; that the said goods levied upon were old and worn stock at the time the levy was made, and were moved from Grunthal’s store to the stable on Adams street; that at the time the defendant’s writ of attachment was dissolved there had been no depreciation in the value of the stock of goods; that after-wards he sold the property under an order of the clerk of the court in the said writs of attachment of the Merchants National Bank of Jacksonville against Grunthal and realized therefrom the sum of two thousand, seven hundred and sixty-one dollars and seventy cents, and of the said amount of two thousand seven hundred and sixty-one dollars and seventy cents realized out of the proceeds of the attachment sale, deducted therefrom the sum of six hundred and sixty dollars and twenty-one cents for his costs and expenses in said attachment proceedings, and under an order of the court paid into the registry of the court the sum of $1,100, $1,000 of which went for exemption and $100 for costs, and the balance of said proceeds were paid to the Merchants National Bank of Jacksonville, and that defendant got nothing by its attachment.” The plaintiff objected to this evidence and the objection was sustained and an exception noted.

The defendant also offered in evidence the several records of the attachment suits of the Merchants National Bank against Grunthal, including the attachments, the orders thereon and the levies thereunder (some of them made after the dissolution of defendant’s attachment on the same property as was levied on under defendant’s writ), the order of sale of said property as perishable, made by the clerk on May 30th, 1896, and the order of the judge distributing the proceeds of the sale made on August 3rd, 1896. A general objection was made to their introduction in evidence, which was sustained and exceptions noted.

It is contended by the defendant in error that these assignments can not be considered because they are “alike predicated of a single and the same ruling upon a single and the same proffer of evidence as an entirety. There are in the record no several rulings on this proffer of evidence as an entirety.” The record shows that.Bowden’s testimony was offered as a whole; that there was a general objection which was sustained; that the records in the attachment suits, the levies and orders therein were tendered as a whole,' and that there was a general objection which was sustained. There was an exception to each of these rulings. It is evident that all this evidence tended to show one single ultimate fact, i. e., that the connection of the defendant with the goods which were attached ended when its writ was dissolved and the property was still withheld from the plaintiff under other writs and suits with which the defendant was not connected, and finally disposed of under those suits. In discussing the eleventh assignment of error the defendant in error does contend that the evidence of Bowden was properly refused, because the defendant offered to show by Bowden that its writ was dissolved on the third of February, 1896, whereas the record which had been offered and read in evidence by the plaintiff showed that it was dissolved on the third of January, 1896. But we are satisfied this was a mere lapsus linguae on the part of the attorney offering the evidence. He certainly did not thereby intend to contradict a record in a particular which was injurious to himself, and to show he was responsible for the detention of the property a whole month longer than the record itself showed. There was no specific objection for this cause when the evidence was offered, and if there had been, doubtless the error would have been corrected. Undoubtedly the rule is well established that a mere general assignment of error is insufficient to present any question for review, but it is also true that just what will constitute a sufficient assignment must depend very largely upon the special circumstances of the particular case. The assignment should be sufficiently specific to give the court real aid, and a voyage of discovery through a voluminous record not rendered necessary. 2 Ency. Pl. & Pr. pp. 942-3. This court has frequently held that an assignment of error based on a general exception to several instructions, any one of which is correct, will be overruled. It is held in Stephenson v. Flagg, 41 Neb. 371" court="Neb." date_filed="1894-06-26" href="https://app.midpage.ai/document/stephenson-v-flagg-6649259?utm_source=webapp" opinion_id="6649259">41 Neb. 371, 59 N. W. 785, that where an assignment challenges rulings of the court in a group, if any of the rulings are correct, the assignment will not be considered further. We have not been able to discover that there was anything materially improper in any of the evidence proffered, and covered by the assignments of error under consideration; and we think the court should have admitted it. Columbia Mill Co. v. National Bank of Commerce, 52 Minn. 224" court="Minn." date_filed="1893-01-13" href="https://app.midpage.ai/document/columbia-mill-co-v-national-bank-of-commerce-7967752?utm_source=webapp" opinion_id="7967752">52 Minn. 224. It is evident from the charges of the judge to the jury upon what theory the evidence of Bowden and the records offered in evidence were rejected. That theory was that the defendant became a trespasser by levying an invalid attachment on the goods of plaintiff and by the sheriff’s taking them from the possession of plaintiff thereunder; that a trespasser taking personal property is responsible for their market value at the time of the unlawful taking; that if he is prevented from returning them by another wrong doer, that fact is no justification to him, nor does it go in mitigation of damages. If, however, the defendant could show that the sheriff held the property under another valid writ, that would go to the jury in mitigation of damages; and that the goods were sold under the order of the clerk made May 30th, 1896, and that after deducting several hundred dollars — costs of the sheriff in the various attachment proceedings — $2,000.05 was left, of which $1,000 was exempted to Grunthal and $1,000.05 applied on the execution of the Merchants National Bank against him which entitled the' defendant to have $2,000.05 deducted from the value of the goods at the time of defendant’s levy, and that plaintiff was entitled to a judgment for the difference with 8 per cent interest from the date of the levy. We think from the various charges of the judge and remarks made in refusing to admit the proffered testimony that the foregoing was substantially his theory of the law as applied to the case.

Among others this charge was given to the jury: “You are to find, gentlemen, from the testimony according to the rules I have given you what was the market value of the property taken on the 18th December, 1895. Finding that, that is the amount of the damages less the amount of $2,000.05 with interest to be computed at 8 per cent per annum from the 18th December, 1895.”

It was admitted that out of the proceeds of the goods levied on and sold by the order of the clerk under the writ of the Merchants National Bank against Grunthal the latter received $1,000 as an exemption, and that $1,000.05 was credited on an execution in favor of the Merchants National Bank against him. There is no doubt in our minds that the undisputed facts show that the defendant was a trespasser, and that the plaintiff without any proof of actual damages was 'entitled to a judgment for nominal damages and costs. The learned judge who tried the case charged the jury they could only find compensatory damages, and could not find punitive damages. We think this was correct, provided there was evidence from which compensatory damages could be ascertained, and upon this point we express no opinion as the case will have to be tried again. But what is the proper rule for ascertaining compensatory damages in such a case?

It is stated in the case of Wehle v. Spelman, 25 Hun. (N. Y.) 99, where property is wrongfully taken under an irregular attachment it may be shown in a suit brought, after the setting aside of the attachment, to recover damages occasioned thereby, that the property was subsequently seized under process issued in favor of another creditor of the owner and applied to the payment of his 'debt. Where, however, the parties under whose subsequent process the property is finally taken have acted in concert with the attaching creditor, against whom the action for damages is brought and had first wrongfully themselves issued attachments, which like that of the defendant, had been set aside as irregular, and the property after having been taken upon such irregular attachments has never in fact been returned to the plaintiff’s possession, the fact of the subsequent seizure under valid process in their favor can have no effect upon the defendant’s liability.

In the case at bar there was no proof that the defendant acted in concert or collusion with the Merchants National Bank in attaching plaintiff’s property.

In the case of Marqueze v. Sontheimer, 59 Miss. 430" court="Miss." date_filed="1882-04-15" href="https://app.midpage.ai/document/marqueze-v-sontheimer-7985695?utm_source=webapp" opinion_id="7985695">59 Miss. 430, it is decided that “judgment creditors who levy executions in consequence of an attachment are severally responsible, and the attaching creditor is not liable for the injury occasioned by them.” In the body of the opinion, on page 440, Judge Campbrrr delivering the opinion says: “As a rule, every one is liable for his own wrong, and not for that of another. A wrong doer is responsible for the consequences produced by his own act, but not for what others acting independently of him, and for themselves, may do, even though his act may be the occasion of their doing what they do. That another independent agent, acting on his own responsibility, does something because one has done a particular thing does not make such one responsible for the act of the other. They are independent actors, and each is answerable for his own acts, because of the want of causal connection between the acts. Consecutive wrongs done by independent agents can not be conjoined to increase or enlarge the responsibility of one of them. If others attach or levy executions, after another, and because he has attached, they are responsible severally for what they do, and the first attaching creditor is not responsible for any injury occasioned by the acts of the others, although they merely followed his example.” In the case at bar it not only does not appear that there was any causal connection between the attachments of the Merchants National Bank and the defendant, but it does not even appear that the former merely followed the example of the latter.

In the case of Montgomery v. Wilson, 48 Vt. 616" court="Vt." date_filed="1876-03-15" href="https://app.midpage.ai/document/montgomery-v-wilson-6580452?utm_source=webapp" opinion_id="6580452">48 Vt. 616, it appears that “defendants were trespassers in taking and driving away plaintiff’s cattle, but the cattle were taken from defendants’ possession on writs of attachment against the plaintiff, and subsequently sold, and the avails thereof applied on executions against the plaintiff. Held, that defendants were liable for damages only up to the time of the attachment, irrespectively of whether the officer proceeded legally with the property after the attachment or not.”

In the case of Kaley v. Shed, 10 Metcalf, 317, the opinion is written by Chief-Justice Si-iaw, and it is held that “in an action of trespass for goods taken and carried away which the plaintiff before action brought demanded to be returned to him, and which the defendant promised to return, and which were attached on a writ against the plaintiff, while the defendant was preparing to return them, the measure of damages is the same that it would have been if the defendant had returned the goods.”

In the case of Anderson v. Land, 5 Wash. 493, 32 Pac. Rep. 107, S. C. 34 Ain. St. Rep. 875, the court adjudicates the effect of a dissolution of an attachment and holds the lien of an attachment is ended when the attachment is dissolved, and after such dissolution the owner of the property attached can dispose of it as he sees fit, whether it has been actually turned over to him by the officer or not.

Under the authority of these cases, as well as upon principles of natural justice, we think the rule for ascertaining the actual damages of the plaintiff in this case under the evidence of the plaintiff and that proffered by the defendant, is the difference between the value of the property seized under defendant’s writ of attachment, at the time of seizure, and the value of the said goods on the day when the said attachment was dissolved; and that the defendant ought not to be held liable for any damage to or depreciation in value which might have occurred between the last named day and the day of the sale of the property under the alleged order of the clerk of May 30th, 1896, upon the alleged petition of the Merchants National Bank under its writs. No sort of combination or connection between the defendant and the Merchants National Bank in causing their several writs to be issued is shown or attempted to be shown. The description of the articles mentioned in the declaration shows many of them to have been of a.perishable nature, and it is probable that there may have been more or less depreciation in value between the date of the dissolution of defendant’s writ and the time of sale. It follows, that although the court seems to have attempted to apply the principle of mitigation of damages, yet in our judgment it was not the correct one, for whatever depreciation may have taken place between the date of the dissolution of defendant’s writ of attachment and the date of sale, was not under the proffered evidence because of defendant’s wrong. In the nature of things such depreciation and damages must have been the result of the sheriff’s holding the property under the other writs, and selling them at an enforced sale under such other writs, with which the defendant had nothing to do, and which he could not control. No way was open to it of taking the goods from the sheriff and of returning them to the owner or of disposing of them. They were in custodia le gis. If the property'was held, from the eighteenth of December, 1895, until the third of January, 1896, under the writs of the Merchants National Bank, as well of that of the defendant, they would each be liable for all the damage or depreciation in value of the goods which occurred during that time. We think the court should have admitted in evidence to the jury the records of the Merchants National Bank suits, and the testimony of Bowden, which were proffered by the defendant. It follows, therefore, that in our opinion the eighth and ninth assignments of error are well taken.

It is unnecessary to examine the remaining assignments, as whatever errors they may show result from the theory of law upon which the court tried the case, and which, so far as this case is concerned, we think was incorrect.

Motion was heretofore made by the defendant in error to strike various matters from the transcript, which motion was continued until the final hearing of the cause; this motion is disposed of by the following order: The judgment of the court below is hereby reversed and a new trial ordered, at the cost of the defendant in error, except that the plaintiff in error shall be taxed with the cost of transcribing the following matters into the transcript of record, which are improperly included in such transcript, viz: The special appearance and motion of the defendant below to quash the writ of summons, and the affidavits filed in support thereof and in opposition thereto, and the ruling of the court thereon and the exception of the defendant thereto, found in the record proper at pages five (5) to nine (9) inclusive. Also the motion for leave to file additional pleas with the pleas offered therewith and the order of the judge denying such motion and the exception of the defendant thereto, found on pages eleven and a half (11/4) to sixteen (16) of the record proper inclusive. All of said matters being matters proper to be exhibited to an appellate court only in and by a bill of exceptions and having no place in the record proper of the cause.