Pinson v. Kirsh

46 Tex. 26 | Tex. | 1876

Moore, Associate Justice.

The alleged errors, calling in question the validity of the attachment, because the affidavit on which it issued, was written with permission of the court, upon the original petition after the defendant had appeared and answered; that the affidavit was not marked by the clerk “filed;” that the petition was not refiled after said affidavit was made, and on account of the difference of the filing of the petition and the bond for attachment, are frivolous, .and unworthy of serious consideration. Counsel must surely have suffered his zeal fqr his client to obscure his judgment, or he would not incumber the records of the court with such objections, or consume its time with elaborate discussions in attempting to maintain them.

The court did not err in sustaining the plaintiff’s exceptions to defendant’s answers claiming damages for the alleged wrongful suing out of the attachment. The answers show upon them face that the alleged injuries for which damages are demanded cannot be said to have been the immediate and proximate result of the wrongful issue of the attachment If the defendant sustained any damage at all of which he can complain, it is from a malicious and wrongful use or abuse of the attachment in its levy, irrespective oí the fact of its haying been properly or improperly issued, hi cither the truth nor sufficiency of the ground for the attachment alleged in the affidavit, are controverted. It is evident from the answers that the attachment was •priyna fade rightfully issued, if the property levied upon b elonged to the defendant. The injmies for which defendant asked to be compensated are specifically enumerated and set forth in his answers. They result solely from the fact, as he alleges, that the property levied upon belonged to another party and not to himself. If the property was his, unquestionably, on the allegations in his answer's, he has no claim for damages. Surely it cannot be seriously urged that the bare fact that the property levied upon does not belong to the defendant, entitles him to damages which otherwise he could not claim.

Wé are not called upon to determine, and therefore will not undertake to say, that a party might not suffer damage for which he could maintain an action by reason of the levy of an attachment, either properly or improperly issued, on property of which he was not the owner. But we do say that that to do so he must present an altogether different case from that stated in these answers. The facts alleged must not only be such as will support an action on the bond for the wrongful suing out the attachment, but such as would at common law maintain an action for malicious attachment.

But if the answers were in other respects unobjectionable, the exceptions should have been sustained, because the damages laid plainly appear not to be the natural proximate consequence or legal result of the alleged wrongful act, and are therefore too remote to be the basis for a recovery. (Plumb v. Woodmansee, 34 Iowa, 116.)

There is no error in the judgment, and it is therefore affirmed.

Affirmed.