Beyersdorf v. Sump

YaNderburgh, J. There is no evidence that the attachment described in the complaint was issued maliciously and without probable cause; and the court submitted the ease to the jury solely upon the evidence of the conduct of the defendants in withholding the goods from the plaintiff after the dissolution of the attachment. 1. No objection having been made to the complaint for misjoinder of causes of action, the court properly overruled the objection made on behalf of both defendants jointly to the admission of any evidence in the case under the complaint. In respect to the defendant Mullen, the officer who attached the property in question, it is alleged that he refused to deliver the same to plaintiff upon demand, after the attachment was dissolved. This shows a liability against him. But there is nothing to connect him with the acts of defendant Sump in causing the writ to be issued, and the writ was a protection to the officer, in so far as he acted in obedience to it. Gunz v. Heffner, 33 Minn. 215, (22 N. W. Rep. 386.) And, to make a ease against the defendant Sump, it should appear by proper averment, not merely that the affidavit for the attachment was false, but that he caused the writ to issue maliciously and without probable cause. 2 Greenl. Ev. § 454; Given v. Webb, 7 Rob. (N. Y.) 65; Cochrane v. Quackenbush, [498] 29 Minn. 376, (13 N. W. Rep. 154;) Bliss. Code Pl. (2d Ed.) § 287. Malice, in such eases, is an issuable fact to be pleaded. In this case, however, the plaintiff alleges that the affidavit for the attachment was wholly false in every particular, and that the defendant Sump knew it to be so when he made it. It also appears that the attachment was duly dissolved five days after, and the property discharged from the levy; so that the complaint is sufficient to show want of probable cause and malice, by implication at least. It would be good after verdict, and we think, also, as against a general objection such as was made in this case; for, had the attention of the court been specifically called to the form of the allegation, the defect might have been cured by amendment. The first .exception is not sustained. 2. The defendants’ answer sets up the pendency of a former suit between the same parties for the same cause. Upon the trial, in support of this answer, the defendants offered the complaint and record in another action in the same court, by the same plaintiff, against these defendants and the sureties in the attachment bond. But the complaint shows that the ground and subject-matter are the same, though the allegations are somewhat varied. The evidence should have been received; there is no doubt that the substantial facts relied on for a recovery in each case are the same. Drea v. Cariveau, 28 Minn. 280, (9 N. W. Rep. 802.) It is not material that there were additional parties defendant in that suit, since a judgment in that action against these defendants would be predicated upon the same facts here relied on for a recovery; that is, there is the same ground of liability against them in each action. Bigelow v. Winsor, 1 Gray, 299. Clearly the plaintiff would not be entitled to judgment in both actions; and, if a judgment in the former suit would be a bar, the pendency of that action may be pleaded in abatement of this, though the form of the action be different. Marsh v. Masterson, 101 N. Y. 401, 407, (5 N. E. Rep. 59;) Sanderson v. Peabody, 58 N. H. 116. The exclusion of the evidence was error. 3. The record shows that a portion of the goods levied on were subsequently released to the Standard Furniture Company, by the consent and direction of the defendant Sump. . The claim and title of [499] the Standard Company thereto are put in issue by the reply. In order to escape liability for those goods, it was incumbent on the defendants to show that the Standard Company owned them. Since this issue was presented by the pleadings, and submitted upon the evidence, a several verdict thereon was proper as to Sump. If the goods were wrongfully withheld from plaintiff after the discharge of the attachment, through the collusion of the defendants, in order to subject them to garnishment by defendant Sump, and ultimately to an execution in the same case, the defendants would not be entitled to show, in mitigation of damages, that the goods were afterwards levied on and sold upon execution issued in the attachment suit, because no one is permitted to found a claim or defence upon his own wrongful acts. But if the goods were subject to levy, and were in good faith, and without fraud or collusion, levied on and sold under the execution issued in that suit, that fact may be shown in reduction of damages. Howard v. Manderfield, 31 Minn. 337, (17 N. W. Rep. 946;) Jellett v. St. Paul, M. & M. Ry. Co., 30 Minn. 265, (15 N. W. Rep. 237.) Judgment reversed, and new trial ordered.