State ex rel. Thrasher v. Heckart

Missouri Court of Appeals

State ex rel. Thrasher v. Heckart

62 Mo. App. 427, 1895 Mo. App. LEXIS 444

DecidedMay 7, 1895

StatusPublished

This text of 62 Mo. App. 427 (State ex rel. Thrasher v. Heckart) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Thrasher v. Heckart, 62 Mo. App. 427, 1895 Mo. App. LEXIS 444 (Mo. Ct. App. 1895).

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Opinion

Biggs, J.

The defendant, Heekart, brought an attachment suit against the Missouri Lumber Company, a corporation, to recover an alleged indebtedness of $6,000. He and his codefendants executed the attachment bond here in suit. There were thirteen prior attachments against the Lumber Company, all of which were sustained. The prior liens being in excess of the .value of the property attached, Heekart dismissed his suit. The Lumber Company employed the plaintiffs, who are attorneys at law, to represent them in all of the actions. Subsequently to the dismissal of the suit by Heekart, the president of the Lumber Company attempted to transfer the claim of the company oh the bond here in suit to the plaintiffs, who bring this ac[429]*429tion as such 'assignees, and claim that the Lumber Company was damaged, by reason of the attachment, in the sum of $600. The answer is a general denial, and, in addition, it is averred that at the time of the assignment the Missouri Lumber Company owed Heekart a large amount of money. The cause was submitted to a jury. All instructions asked by the plaintiffs were given. The defendants asked none. The court gave one on the measure of damages, against which no objection is made. The verdict of the jury was for the defendants, and the plaintiffs have appealed.

The plaintiffs’ instructions submitted to the jury two questions of fact, one as to the amount of the damages sustained by reason of the attachment, and the other as to the authority of the president of the Lumber Company to make the assignment of the claim. The contention is that the finding of the jury as to both issues was not authorized by the evidence.

The execution of the assignment' of the claim for damages on the bond was not controverted.' It was signed by the president and secretary of the company, and had the seal of the corporation attached. This made a prima facie case for the plaintiffs as to the validity of the assignment. State v. Heckart, 49 Mo. App. 280; Missouri, etc., v. Ellison, 30 Mo. App. 67; Musser v. Johnson, 42 Mo. 74; Bambrick v. Campbell, 37 Mo. App. 460. The other evidence bearing on the question of the authority of the president to execute the transfer is not sufficient, in our opinion, to rebut this prima facie case. In fact, all the evidence tends to prove that he had in charge the finances of the company; that he had been in the habit of transferring checks, drafts, notes and other claims of the company in discharge of its indebtedness, and that his acts, if not ^expressly authorized, had been acquiesced in or expressly ratified [430]*430by the directors. Therefore, as to that issue the finding of the jury is unsupported by any evidence.

Concerning the proof as to the damages, we encounter greater difficulty. The plaintiffs’ evidence tended to prove that their services in defending the suit brought by Heekart were worth at least $300. The bulk of the work in that particular case consisted of an investigation of the books of the Lumber Company by the plaintiffs, and a trip from Springfield to Howell county for the purpose of establishing the fact that Heckart’s alleged debt was fictitious. They also filed a plea in abatement putting in issue the truth of the alleged grounds of attachment, and the plea also contained a denial of the indebtedness. Now, it is well settled that the claim for counsel fees, in actions on attachment bonds, must be confined to those incurred in procuring a dissolution of the attachment. Fry v. Estes, 52 Mo. App. 1. It is also the law of this state that the merits of the plaintiff’s claim in an attachment suit can not be investigated on the trial of the plea in abatement. Chouteau v. Boughton, 100 Mo. 406. It may be proper to state in this connection that the uncontradicted evidence was that, at the time of the institution of the attachment suit, the Missouri Lumber Company was largely indebted to Heekart. It is plain, therefore, that the plaintiffs can not recover anything for their services in preparing to defend the action on the merits, and, as no attempt was made to segregate or apportion the charges for the different services, the plaintiffs were entitled, at most,' to nominal damages.

Upon a retrial of the cause the plaintiffs would be entitled to recover, under the conceded facts, the reasonable cost of preparing and. filing a plea in abatement. The ease of Skrainka v. Oertel, 14 Mo. App. 474, loc. cit. 482, furnishes a precedent for an estimation of such [431]*431services by a court. As the costs of a new trial would necessarily exceed the plaintiffs’ possible recovery, we will not remand the cause for new trial of the only matter in dispute, namely, the cost of preparing and filing a plea in abatement. We deem the reasonable value of such service to be $10. The judgment is reversed and the cause remanded, with directions to enter judgment for plaintiffs for the penalty of the bond, with an award of $10 for damages.

All the judges concurring,

it is so ordered.

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Biggs, J.

The defendant, Heekart, brought an attachment suit against the Missouri Lumber Company, a corporation, to recover an alleged indebtedness of $6,000. He and his codefendants executed the attachment bond here in suit. There were thirteen prior attachments against the Lumber Company, all of which were sustained. The prior liens being in excess of the .value of the property attached, Heekart dismissed his suit. The Lumber Company employed the plaintiffs, who are attorneys at law, to represent them in all of the actions. Subsequently to the dismissal of the suit by Heekart, the president of the Lumber Company attempted to transfer the claim of the company oh the bond here in suit to the plaintiffs, who bring this ac[429]*429tion as such 'assignees, and claim that the Lumber Company was damaged, by reason of the attachment, in the sum of $600. The answer is a general denial, and, in addition, it is averred that at the time of the assignment the Missouri Lumber Company owed Heekart a large amount of money. The cause was submitted to a jury. All instructions asked by the plaintiffs were given. The defendants asked none. The court gave one on the measure of damages, against which no objection is made. The verdict of the jury was for the defendants, and the plaintiffs have appealed.

The plaintiffs’ instructions submitted to the jury two questions of fact, one as to the amount of the damages sustained by reason of the attachment, and the other as to the authority of the president of the Lumber Company to make the assignment of the claim. The contention is that the finding of the jury as to both issues was not authorized by the evidence.

The execution of the assignment' of the claim for damages on the bond was not controverted.' It was signed by the president and secretary of the company, and had the seal of the corporation attached. This made a prima facie case for the plaintiffs as to the validity of the assignment. State v. Heckart, 49 Mo. App. 280; Missouri, etc., v. Ellison, 30 Mo. App. 67; Musser v. Johnson, 42 Mo. 74; Bambrick v. Campbell, 37 Mo. App. 460. The other evidence bearing on the question of the authority of the president to execute the transfer is not sufficient, in our opinion, to rebut this prima facie case. In fact, all the evidence tends to prove that he had in charge the finances of the company; that he had been in the habit of transferring checks, drafts, notes and other claims of the company in discharge of its indebtedness, and that his acts, if not ^expressly authorized, had been acquiesced in or expressly ratified [430]*430by the directors. Therefore, as to that issue the finding of the jury is unsupported by any evidence.

Concerning the proof as to the damages, we encounter greater difficulty. The plaintiffs’ evidence tended to prove that their services in defending the suit brought by Heekart were worth at least $300. The bulk of the work in that particular case consisted of an investigation of the books of the Lumber Company by the plaintiffs, and a trip from Springfield to Howell county for the purpose of establishing the fact that Heckart’s alleged debt was fictitious. They also filed a plea in abatement putting in issue the truth of the alleged grounds of attachment, and the plea also contained a denial of the indebtedness. Now, it is well settled that the claim for counsel fees, in actions on attachment bonds, must be confined to those incurred in procuring a dissolution of the attachment. Fry v. Estes, 52 Mo. App. 1. It is also the law of this state that the merits of the plaintiff’s claim in an attachment suit can not be investigated on the trial of the plea in abatement. Chouteau v. Boughton, 100 Mo. 406. It may be proper to state in this connection that the uncontradicted evidence was that, at the time of the institution of the attachment suit, the Missouri Lumber Company was largely indebted to Heekart. It is plain, therefore, that the plaintiffs can not recover anything for their services in preparing to defend the action on the merits, and, as no attempt was made to segregate or apportion the charges for the different services, the plaintiffs were entitled, at most,' to nominal damages.

Upon a retrial of the cause the plaintiffs would be entitled to recover, under the conceded facts, the reasonable cost of preparing and. filing a plea in abatement. The ease of Skrainka v. Oertel, 14 Mo. App. 474, loc. cit. 482, furnishes a precedent for an estimation of such [431]*431services by a court. As the costs of a new trial would necessarily exceed the plaintiffs’ possible recovery, we will not remand the cause for new trial of the only matter in dispute, namely, the cost of preparing and filing a plea in abatement. We deem the reasonable value of such service to be $10. The judgment is reversed and the cause remanded, with directions to enter judgment for plaintiffs for the penalty of the bond, with an award of $10 for damages.

All the judges concurring,

it is so ordered.

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