Slawson v. Conkey , 10 How. Pr. 57 ( 1853 )

Morris, Justice.

Reduce these pleadings to their simple legal meaning and effect, and they are as follows, viz.: The plaintiffs charge the defendant with having wrongfully converted the property of the plaintiffs to the defendant’s use.

The defendant denies the charge.

There is no proof either that the plaintiffs owned the property ; or that the defendant wrongfully converted it. To sustain this action both these facts must be established.

The plaintiffs introduced a provisional order in this case, made by the special term on the 27th of March, 1852, under subdivision 5 of section 244 of the Code, 11 directing the defendant to satisfy and pay to the plaintiffs the amount of $678.54, with interest from the 21st day of May, 1851, being the amount of the indebtedness admitted in the answer to be due by the defendant to the plaintiffs for the goods mentioned in the plaintiffs’ complaint as sold by the plaintiffs to the defendant.”

This provisional order was improvidently granted by the special term, because,

1. The provisional order is applicable only where the defendant’s answer admits. part of the plaintiffs’ claim. When the whole claim is admitted, there should be a judgment. This order is for the payment of the whole amount, not merely for a part.

2. This is an action for a tort, for trover, and conversion; and the claim in it is for damages for such trover and conversion. The answer in this case does not admit any part of this claim made for the trover and conversion, but expressly denies the trover and conversion, and all liability in that action—denies the whole claim made in that action. The facts stated in the defendant’s answer, admitting he was indebted to the plaintiffs upon a contract, were essential facts to show that the property belonged to the defendant and not to the plaintiffs, and therefore were a denial of plaintiffs’ claim in that suit instead of an admission. This provisional order is not evidence in this cause.

The whole difficulty in this case originated in an effort of the plaintiffs to convert a simple contract claim into a fraud, so that they could extort payment from the defendant or his friends by obtaining the power to imprison the person of the defendant.

Against such fraudulent attempts to violate the humane and just principles of the nonimprisonment act courts should be watchful.

In this case had the plaintiffs instituted their suit upon the contract, they could have taken their judgment upon the coming in of defendant’s answer, on the 10th of October, 1851.

A judgment in favor of the plaintiffs, upon this record, would authorize the imprisonment of the defendant.

There should be judgment for the defendant, dismissing the complaint with costs.