107 Ky. 611 | Ky. Ct. App. | 1900
delivered the opinion op the court.
On the 21st day of August, 1895, appellant filed a petition in the Bracken' Circuit Court against W. A. Gibbons, the father of appellee, and appellee was also made a defendant. It was alleged that W. A. Gibbons was indebted to appellant in the sum of $11,217.28 for money advanced to him for the purpose of purchasing leaf tobacco under an agreement that the tobacco purchased should be shipped by W. A. Gibbons to appellant’s warehouse in Cincinnati, Ohio, where.it was to be sold, and out of the proceeds appellant was to receive the usual warehouse fees, commissions, etc., and the money so advanced by it, with interest; that W. A. Gibbons, in violation of his agreement, bought large quantities of tobacco with the money advanced to him by appellant, and shipped it to his co-defendant, TV. M. Gibbons, in Louisville, Kentucky, who sold it, and had the proceeds; that the defendants had conspired and confederated together to defraud the plaintiff; and that the defendant, W. A. Gibbons, was about to sell, convey or otherwise dispose of his property'to cheat, hinder and delay his creditors; and that he had sold, conveyed or otherwise disposed of his property, or suffered or permitted it to be done, with such intent; and the petition closed with this prayer;
“Wherefore plaintiff prays for an order of general attachment against the defendant, W. A. Gib*616 bons, for judgment for $11,217.28, with six per cent, interest from August 21, 1895, until paid; for its costs; that the funds and property of said defendant be attached in the hands of his co-defendant, W. M. Gibbons, or otherwise; and upon final hearing that the attachment be sustained; and for all other proper relief.”
An attachment bond was executed to W. A. Gibbons, and a general attachment against W. A. Gibbons alone was issued, though summons issued against appellee also.
Subsequently, and before the levy of the original attachment, appellant, through its attorney, procured from the deputy clerk a number of copies of the attachment, in which the name of appellee was inserted as a party defendant whose property was sought to be attached; and a number of these copies were delivered to various garnishees in Louisville by the sheriff, who had the original older of attachment in his hands for execution; and the attachment against W. A. Gibbons was, by direction of ap pellanffs attorney, levied on certain property in the pos session of appellee as the property of W. A. Gibbons.
At the next ensuing term of the court appellant filed an amended petition, in which it was alleged that W. M. Gibbons was a co-partner in the transaction set forth in the original petition, and with full know ledge of the contract and agreement between ap pellant and W. A. Gibbons converted a large amount of the tobacco bought with the moneys' advanced to W. A. Gibbons to his own use, and sought a personal judgment against him; but no additional attachment was sued out in the action other than that which issued on theoriginal petition.
.W A. Gibbons filed an answer, in which he admitted his liability for the debt sued for, but denied
At the March term the issue as to the ownership of this tobacco1 and of appellee’s personal liability was tried by a jury, and resulted in a verdict for appellee, upon which judgment was rendered dismissing the petition as to him. Thereafter appellee instituted this action against appellant for damages for maliciously and without probable cause instituting and prosecuting the former action against him, and for maliciously and without probable cause causing the attachment to be issued without good cause. A trial of this action resulted in a verdict and judgment in favor of appellee for $2,000 under instructions authorizing a recovery under each paragraph of the petition, and, a motion for a new trial having been overruled, appellant has appealed to this court.
The original petition contains two paragraphs. In one it is alleged that appellant maliciously and without probable cause instituted this suit against him, and maliciously caused an attachment to issue against the property of appellee, and had same levied upon certain tobacco and other property belonging to him^set out in the petition. The other paragraph is a proceeding under section 7, Kentucky Statutes, for damages for the suing out and levy of the attachment “without good cause,” and in this paragraph it is alleged “that said writ and purported copies thereof were caused to be issued against plaintiff herein
The answer, as amended, is a general denial of each and every averment of the petition. From a careful examination of the pleadings in this case we are of opinion that the attachment sued out in the proceeding instituted by appellant against W. A. Gibbons was against him alone, and that it only sought incidentally to subject certain property of W. A. Gibbons alleged to be in the possession of appellee to the payment of its demand, and that appellee was made a party defendant for this purpose alone. The averments of the petition did not authorize the issual of an attachment against the property of appellee, and no bond was executed to him authorizing the clerk to issue such attachment, and the insertion of his name in the copies of the attachment was manifestly an error. There is nothing in that proceeding showing that an attachment was sought against appellee or his property, and the law is well settled that an action for the malicious or wrongful suing out of an attachment can only be maintained by a defendant against whom such attachment had been actually sued out. (See Jaggard on Torts, 612; Duncan v. Griswold, 92 Ky., 546, [18 S. W., 354].)
But the injury for which appellee has a cause of action is that the attachment against W. A. Gibbons was, by the direction of appellant, levied upon his property; and the averments of the petition are sufficient to support a cause of action for such wrongful levy and seizure, and for damages to the property levied upon that directly flowed therefrom.
There was no motion to require appellee to elect what
The case of Worthington v. Morris’ Ex’x, 98 Ky., 54, [32 S. W., 269], was an action for damages for the wrongful seizure of the property of a defendant by attachment, who was charged with having fraudulently conspired with a debtor to assist him to cheat, hinder and delay his creditors; and the alleged facts of that case were very similar to those relied on in this proceeding, and it was held that the plaintiff could not recover attorneys’ fees as a part of her damages on account of the wrongful seizure of her property which was levied upon under an attachment issued in the action; that only actual and direct damages to the property itself could be recovered.
And we are of the opinion that this should have been the measure of appellee’s recovery in this action.
Whilst appellee also sought in this proceeding to recover for the malicious prosecution of the action itself against him, without regard to the suing out of the attachment, it seems to us, from a careful examination of the testimony, that he has failed to make out the necessary grounds in a proceeding of that character, as it must appear that such action was founded in malice, was instituted without probable cause, and that the plaintiff ha® been damaged thereby. (See Woods v. Finnell, 13 Bush, 633, and Lancaster v. McKay (Ky.), [45 S. W., 887].)
What is meant by malice and probable cause has been so frequently construed by the opinions of this court that it is unnecessary that we should do so again in this proceeding. The burden to establish both of these ingredients rested upon appellee, and, in our opinion, he has failed
For reasons indicated, the judgment is reversed, and cause remanded for a new trial consistent with this opim ion.
