108 Iowa 575 | Iowa | 1899
Lead Opinion
Appellants’ contention on this appeal is (1) that plaintiff has once been paid all damages growing out of the alleged wrongful suing out of the attachment, and therefore cannot recover them a second time'; (&) that the plaintiffs in the two ■attachment suits were joint wrongdoers, and that the judgment in the Shaber, Reinthal & Oo. case was a release and satisfaction of all claims against either.
It is familiar doctrine that a person injured by an act of joint wrongdoers is entitled to but one satisfaction for the '
In his counterclaim for damages, as well as in this action, he sued for conversion of his personal property, and for the damages incident thereto; claiming in each pleading that his property had been taken, used, and converted by that particular attaching creditor. If this action was trover or conversion, then it is clear that he cannot have payment for his property twice. The rule is well settled that, upon payment of a judgment for conversion, if not before, the title to the property passes to the judgment defendant and plaintiff cannot again sue for conversion of the identical property, for the plain reason that he cannot give title and has no longer any interest in the property; for his right thereto has passed to the first judgment defendant.
Dissenting Opinion
(dissenting).- — I. The theory of the appellants on the original submission was that Beck & Co. and "Shaber, Beinthal & Co. were joint wrongdoers, and that the satisfaction of the claim of the plaintiff, as against the latter, operated to release the former. It was not understood by the court, nor apparently by counsel for the appellee, that the appellants claimed that satisfaction of the demand of the plaintiff against Shaber, Beinthal & Co. would operate as a release of Beck & Co., even though they were not joint wrongdoers, and the original opinion was written to meet the theories on which the case was submitted. If it can be said that the appellants did make the claim indicated, it was done so obscurely that it was properly disregarded. It is fairly presented for the first time in the petition for rehearing. But it has been the well-settled rule of this court not to grant relief on grounds asked for the first time in a petition for rehearing. McDermott v. Railway Co., 85 Iowa, 192. Therefore I am of the opinion that the appellants are not entitled to the relief given by the decision of the majority.
II. I agree with the majority that Beck & Co. were not joint wrongdoers. Having reached that conclusion, it, seems to me that it should follow, as a logical result, that payment by one of them would, at most, operate to discharge the other only to the extent of the payment. But the majority, after holding that there was not a joint wrong, illogically, as I think, hold that, as the writs of attachment were levied
I think the majority err in saying that the court instructed the jury in the Shaber, Reinthal & Co. case that Miller was entitled to all the damages done his property. The material inquiry as to damages in that case was, what damages were caused by the wrongful suing out of the writ in that ease and the proceedings thereunder ? and the damage which resulted from the writ issued in favor of Beck & Co. was not referred to in the pleadings, nor in the charge to the jury, nor was it properly involved in the case. Therefore, if Miller recovered in that case for damages caused by Beck & Co-., he recovered that to which he was not entitled; but that fact, according to ordinary rules, concerned only the parties -to that action.
The question to be determined in this action, after it has been ascertained that the writ was wrongfully sued out, is, what damage was caused by the wrongful suing out of the writ in this case ? not the aggregate damages caused by the wrongful suing out of the two writs. If it be conceded, however, for the purpose of this case, that credit for any
It is said in the opinion of the majority that, if Miller sued in each action for a conversion of the property, he could not have payment for it twice. The claim of Miller in the Shaber, Beinthal & Co. case was on the attachment bond to recover, among other things, for the seizure and sale of the stock of merchandise; and the court charged the jury, not that it might allow as for a conversion of the property, hut for loss or depreciation in its value, and that, if it had been sold by the sheriff for its full value, no damage, by reason of loss or depreciation, had been sustained. I do not think there is any ground for claiming that the effect of the adjudication was to hold that the title to the attached property was vested in the attaching creditors. The record shows that the jury was fully warranted in finding that the plaintiff did not, in the allowance made in the Shaber, ftein-thal & Go. case, receive the full amount to which he was entitled for damages cause by the two writs. Three witnesses testified for the plaintiff respecting the value of his stock when seized under the writs. The plaintiff testified that the stock was then worth about three thousand three hundred dollars, and that the value of the stock and tools,
Concurrence Opinion
(specially concurring). — I concur-in the reversal of this case because of the error in the instruction relating to the measure of damages. Upon the other propositions discussed, I am with the dissent.