Talbot v. Great Western Plaster Co.
152 S.W. 377
Mo. Ct. App.
1912
Check Treatment
JOHNSON, J.

Plaintiff sned to recover actual and punitive damages for the wrongful and malicious prosecution of a suit by attachment. The case has been here on two former appeals, the first of which was taken by defendant and the second by plaintiff, and on .each occasion we reversed the judgment and remanded the cause on account of errors in instructions. [86 Mo. App. 558 and 151 Mo. App. 538]. After the last reversal plaintiff amended his petition in conformity with a suggestion in the last paragraph of our opinion. Defendant answered and before trial the parties agreed to waive a jury and to submit the case on the evidence introduced at the former trial and the agreed additional testimony of a witness relating to the subject of the amendment to the petition. Plaintiff also agreed to waive his demand for punitive damages and the cause submitted to the court was the. alleged wrongful act of "defendant in causing a writ of attachment to be issued in aid of an action against plaintiff begun by him in a justice court and in having certain shares of stock in a private corporation seized under that writ as the property of plaintiff. Plaintiff claims that he sustained actual damages in consequence of the wrongful attachment. The court found in his favor and assessed his damages at twenty-five dollars. Defendant appealed.

The action is not on the attachment bond given by defendant but is in the nature of a common law action on the case for the wrongful act of defendant in causing plaintiff’s property to be seized under a process which defendant caused to be issued and levied on a ground which, in fact was nonexistent. Some time after the seizure, defendant voluntarily dismissed the attachment proceeding but not until plaintiff had in*546curred expense and loss in preparing to contest the ground of the attachment. At the request of defendant the court gave declarations of law to the effect that the mere dismissal of the attachment proceedings was not conclusive evidence of a wrongful attachment and that plaintiff could not recover if any ground of attachment, in fact, existed. We do not find it necessary to express our opinion on the question of the soundness of this rule. In rendering judgment for plaintiff, the court found, as a fact, that when -the writ was sued out' there was no ground of attachment. This finding is supported by substantial evidence and, therefore, is not open to review on appeal. . But defendant com. plains of the refusal of the court to hold that plaintiff could not recover if defendant had probable cause for a belief that he had a true ground for procuring a writ of attachment. Our statute (Sec. 2294, R. S. 1909) allows an attachment to be issued only when certain facts exist — not when there is probable cause to believe they exist. When no such facts do exist, the procurement of a writ of attachment is wrongful and in an action on the case' founded on such wrong, the defendant in the attachment suit may recover compensatory damages regardless of whether o.r not the plaintiff had probable cause for suing out the writ. The good faith of plaintiff is without effect on such cause. We discussed this subject fully in our last opinion and see no reason for changing the views there expressed. The case was tried without prejudicial error.

Judgment affirmed.

All concur.