Palmer v. Breed

BAKER, C. J. The complaint in the case consisted of four several counts, purporting to set up as many causes of action. A general demurrer to the whole complaint was interposed upon the ground that a cause of action was not stated. It was sustained. The appellant declined to amend, and stands upon his complaint and brings this appeal. The rule is well settled that where a complaint contains several counts a general demurrer thereto upon the ground that it fails to state facts sufficient to constitute a cause of action will be overruled if either one of the counts be sufficient. Maxwell on Code Pleading, 375. The proper procedure where there are several counts in the complaint, and one or more be insufficient, is to demur to each of such counts separately. Id. In the first count it is charged that the defendant (the appellee here) sued the plaintiff (appellant here) for $702.13, and caused a writ of attachment to issue in the suit; that he placed it in the hands of the sheriff, and pointed out, directed, and caused him to levy such writ upon plaintiff’s property to the amount and value of $6,500, and furthermore procured the sum of $662 to be garnished in the hands of one of plain 19 tiff’s debtors; that such levies were made at tbe instigation and in obedience to tbe commands of tbe defendant; and that they were excessive and unreasonable, and were made at the direction and command of the defendant, wantonly, and with a view to oppress and injure the plaintiff, and did damage, oppress, and injure him, etc. This charges the officer with acts that the writ did not justify, and from the consequences of which it could not shield him. It is not an ordinary suit for maliciously suing out a writ of attachment. The gravamen is the abuse of the writ in seizing more property than was required to satisfy it and costs, for the purpose and with the intent of oppressing and damaging the debtor. If an officer intentionally execute a writ in an oppressive and excessive manner in order to damage the debtor, and does damage him, he is as much a trespasser as if he was acting without any process whatever. He is, or should be, a minister of justice, not of oppression, and must execute every writ put into his hands in such a manner as to do as little mischie E to the defendant as possible. Handy v. Clippert, 50 Mich. 355, 15 N. W. 507. It is charged that the defendant instigated, directed, and commanded the excessive and oppressive levy with the view to damage the plaintiff. He was therefore equally a trespasser with the officer. Hilliard v. Wilson, 65 Tex. 286. It is but fair to the usually cautious and painstaking judge who passed upon the pleading below to state that the complaint is scarcely to be treated as a model of perspicuity. The demurrer, however, should have been overruled. The judgment is reversed. Bethune, J., and Bouse, J., concur.