McReady v. Rogers , 1 Neb. 124 ( 1871 )

Crounse, J.

Among the errors assigned and chiefly relied- on by the counsel for the plaintiff in error are :

I. The rejection of testimony offered by him in the court below, showing a verdict obtained at the same term of court, against other parties and in favor of the defendant in error, in which was included the same interest sought to be recovered in this action, and

II. Permitting the jury to consider damages arising from detention of the attached property by the sheriff, subsequent to the dissolution of the attachment.

As to the first, I cannot understand upon what principle such proof would have been material.

Certainly not to effect an abatement of this action; for this purpose the offer must have been to show a suit for the identical cause of action, and between the same parties.

Not as res judicata, for the like reason, that neither the-parties nor subject matter are identical; and the further Reason that not until judgment, has a matter become res judicata.

Regarding Rogers as one of several wrong-doers, in attaching the property of McReady, the rule is, that each may be proceeded against, separately, although but one satisfaction can be had. — Livingston v. Bishop, 1 Johns. 290.

But Seating Rogers as a debtor under his bond, as was so pertinaciously insisted upon by the counsel (and the concession is here made for the argument), rather than as a wrong-doer, his obligation is several as respects Kennard. His attachment is a distinct proceeding subject to settlement, continuance, and other incidents independent of that of Kennard or others. Still, as one of a number severally liable for the same debt, he, like each of the others, may be proceeded against to judgment, although but one satisfaction could bo had. Even where the obligation- is joint and several, judgment (without satisfaction) is no bar to a recovery against another. — Brown v. Wooton, Cro. J. 74 ; King v. Hoare, 13 M. & W. 504; Simmons v. Carter, 6 Mass. 18.

The difficulty is, that the counsel, at the time of his offer, was anticipating a condition of the several cases which had not then transpired — the perfection and satisfaction of .judgment against Kennard upon the verdict which was then standing upon the records of the court. McReady in this action was entitled to but his actual damages arising from the interference with his property and credits. If,- as to any parts of those sued for in this action he had been satisfied, he would have been allowed to show it. The introduction of a verdict, simply, is not sufficient. Too many contingencies intervene between that and the realization of the amount it expresses. It may be set aside, the judgment on it may be reversed, or the defendant may be worthless. Nothing short of its satisfaction could avail the defendant below, and this he. might show on proper application, oven after judgment against him.

As to the second point relied on by the plaintiff in error, it would be sufficient to remark that he is not in a condition to take advantage of the supposed error. The bill of exceptions shows so much of the charge of the judge on the trial below as involves several propositions of law, some of which are conceded to be correct. The exception taken by the counsel at the trial is, “ to all and each and every part thereof.” This firing at the flock will not do.

It is a well established point of practice, that when the charge of the court involves more than one single proposition, a general exception to it will be unavailing, and, if any portion of it be correct, the whole will stand. Each specific portion of it which is claimed to be erroneous must be distinctly pointed out, and "specifically excepted to.— See 2 Whit. Prctc. 3d ed. p. 364, citing scores of cases. Nevertheless, let us briefly notice the point contended for by the counsel.

It is claimed by him that on the dissolution of the attachment, it was the duty of the sheriff to return the property to McBeady, and that for his neglect or refusal so to do, Eogers is not responsible; that the sheriff alone is liable from that time. That Eogers, as surety in the attachment suit is responsible for all damage up to the discharge of the attachment, is conceded. Upon what principle he is then to be relieved, I cannot discover. The plaintiff in that suit, representing that McBeady had assigned and disposed of his property with ■ intent to defraud his creditors, procured an attachment. Subsequent proceeding showed these representations to be false, and the attachment was discharged. Thereupon, they stand as though no process against McEeady’s property had ever issued, and become trespassers ab initio. — Lyon v. Yates, et al. 52 Barb. They, through their instrument or agent, the sheriff, took McEeady’s property without his consent, and against his will, and it was their duty to return it, and place him in as good condition as before the taking. It is true that McBeady might, as he did, demand the property of the sheriff,after the dissolution of the attachment, and have his action against him, not officially, but as against any trespasser wrongfully detaining it, upon his refusal to .deliver it up ; still, the liability of tbe plaintiff in the attachment, or that of Rogers, as his surety, is none the less. The contrary rule might prove very damaging. Property of great value, far in excess of the ability of the sheriff, or the amount of his official bond, might, upon a proper and sufficient undertaking being given, be attached and passed into the hands of the sheriff. The condition of the defendant would be quite unfortunate if the sheriff should wilfully dispose of or refuse to return the property — the plaintiff, by the sheriff’s conduct, being relieved ■ from any liability under his bond.

It remains to notice whether the reason assigned for not re-delivering the property be sufficient. The property ■having been wrongfully taken, it follows that any charges paid to get possession of it, or in its keeping, were volun•tary and without warrant, and therefore, re-payment could not be made a condition upon which a return of the property depends.

The judgment must be affirmed.

Judgment affirmed.