141 Mo. 252 | Mo. | 1897
— 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
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 inter-pleader plaintiff recovered judgment for certain per
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 adjudicates, 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 inter-pleader 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
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 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 harrassed 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; Union Railroad and Trans. Co. v. Traube, 59 Mo. 355; Moran v. Plankinton, 64 Mo. 337; Taylor v. Heits, 87 Mo. 660. And our adjudications are in harmony with
First. He argues that it is not enough that the levy.was made at the same time and under the same writ, but it must be of the same character; that the levy upon the accounts in this case was in the nature of a garnishment, whereas the levy upon the personal chattels was complete by seizure. That therefore being made in different ways, the two levies were of necessity different acts. This contention of counsel was met and
But finally on this contention it is claimed that the bank’s claim to the accounts was the only cause of action it had when it filed its interplea; that at that time it had no right to sue for the mortgaged personalty. An exceedingly interesting question has been mooted and discussed by counsel as to the effect of the indorsement of the note of the Davis Company to Spaulding by him to Judge Brownlee. It is insisted by defendants that while the simple transfer of a note passes the securities held by the assignor to secure its payment, it does not without more pass the right of action for a prior conversion of the chattels mortgaged to secure the note or the right to sue for such a tort; that such a right as this last is a matter independent of the debt assigned. Such seems to be the law in Pennsylvania and Illinois. Morris v. McCulloch, 83 Pa. St. 34; Bowers v. Bodley, 4 Ill. App. 279. But in the view we take of this evidence it becomes unnecessary to decide that point.
No reasonable man can read the evidence of the officers of the plaintiff bank who made the loan for which the note and mortgage of the Davis Company was given to Spaulding, and believe for one moment that Spaulding was anything more than the agent of the
Our conclusion upon the foregoing questions precludes any recovery by the plaintiff, and it becomes unnecessary to express any opinion upon the invalidity of the mortgage because a majority of the board did not authorize it, or as to whether the by-laws spread upon the records of the Davis Company will not be presumed to have been adopted by the stockholders. The judgment is affirmed.