151 Mo. App. 538 | Mo. Ct. App. | 1910
Plaintiff’s action is founded on a petition for malicious prosecution of a suit by attachment. The judgment in the trial court was for the defendant.
The case was before us on a former appeal and will be found reported in 86 Mo. App. 558. It appears that defendant instituted an action by attachment against plaintiff on the 19th day of July, 1898, before a justice of the peace and that afterwards on the 1st day of September of that year defendant dismissed the attachment and it was accordingly dissolved. It further appears that before the attachment writ was issued defendant filed the proper and necessary statutory bond. On the trial (without a jury) from which this appeal was taken the court gave, at plaintiff’s instance, two instructions permitting his recovery if defendant’s act was prompted by malice and was without probable cause. But the court refused a third instruction asked by him which allowed a recovery merely for a wrongful attachment without regard to malice or probable cause, and then found for defendant. Prom such finding we assume the court concluded that the evidence did not make a showing of malice, and in refusing plaintiff’s third instruction the court has ruled that no action for damages lies where the attachment is sued out without malice and want of probable cause, although it be wrongfully procured; and that damages for a mere wrongful attachment can only be recovered by an action on the attachment bond.
The law is clear that in ordinary actions the party against whom the action is brought cannot recover damages, however ill-founded and wrongful the action
It is likewise true that in an action for malicious prosecution of a civil suit there must be proof made of malice and want of probable cause. [Sharpe v. Johnston, 59 Mo. 557; Stubbs v. Mulholland, 168 Mo. 47.] The mere wrongful bringing of the action complained of will not sustain a case for malicious prosecution. That is to say, if one asserts and stands upon a right to maintain an action for malicious prosecution, he will fail if he goes no further than to prove the prosecution was wrongful. The cases cited and others of like character from, this state, go no farther than that.
But we have a different question from that. The basis of plaintiff’s case is not that defendant prosecuted an ordinary action against him, but tliat he instituted an extraordinary action in aid of the principal one by suing out an extraordinary writ of attachment, whereby he seized plaintiff’s property. We have not been referred to a case in this state which decides that an action for a wrongful attachment cannot be maintained. On the contrary the right was asserted by the St. Louis Court of Appeals in an opinion by one of the most distinguished members of that court, Judge Rombauer. [Fry v. Estes, 52 Mo. App. 1]
. In other states the eases are not in harmony. In Lindsay v. Larned, 17 Mass. 190, and Wilcox v. McKenzie, 75 Ga. 73, and perhaps some others, it is held that no action can be maintained for merely wrongfully procuring an attachment, and that -the only in-, stance in which a plaintiff in attachment can be held liable is when he takes out the attachment in malice and without probable cause. These courts seem to lose sight of a distinction between a mistaken or wrongful prosecution of a suit, and a wrongful seizure and detention of one’s property by extraordinary process;
In other states an action for damages for wrongful attachment is directly sanctioned. [McLaughlin v. Davis, 14 Kan. 135; Half v. Curtis, 68 Tex. 640; Sanders v. Hughes, 2 Brev. (S. C.) 495; Reukert v. Elliott, 79 Tenn. 235; Jerman v. Stewart, 12 Fed. Rep. 266; Kirksey v. Jones, 7 Ala. 622; Donnell v. Jones, 13 Ala. 490.]
It is a part of the argument by those denying the right to the action unless the act was malicious and without probable cause, that the law recognizes the payment of costs as the only punishment for ill-founded attachments and as a deterrent to hasty seizures, on the ground that if one were liable to any other damage, the hazard would be too great and many would prefer to lose just claims rather than.take the risk. That reasoning might be of some force if it were not that by the terms of the law, where attachment bonds are required, as by our statute, an attaching plaintiff who fails in the attachment, is made liable on' the bond for a wrongful attachment, regardless of any question of malice or probable cause. So that, practically, the question is merely one of procedure; and not one of fundamental right, shielding an attaching creditor from the risk of mistake in taking out the writ and ■laying hold of his debtor’s property. If such creditor may be sued on his attachment bond and damages recovered for a merely wrongful attachment, why may not the action be brought on the case and recovery had for the same thing? "Why should he be compelled to sue upon the bond? Suppose the bond was, for some reason, invalid? In Half v. Curtis, supra, the court,
In Sanders v. Hughes, supra, the court said that “the plaintiff is not bound to sue upon such bond, for any injury he may sustain for suing out the attachment. But he may sue at common law. The bond was intended as additional security.”
In McLaughlin v. Davis, supra, Justice Brewer says (italics our): “In a petition to recover damages for the wrongful issue of an attachment, it is unnecessary to aver a want of probable cause for the suing out of the attachment. A party is entitled to an attachment only when certain facts 'exist, not when there is probable cause to believe they exist. If they do not exist, the attachment is wrongfully issued, and the party causing it to issue is liable for all the damages actually sustained. Nor is it necessary in such case to set out or sue on the undertaking.”
A general statement of the law is made in 3 Am. and Eng. Ency. Law (2 Ed.), 245, as follows:
“In a few jurisdictions it is maintained that to give an attachment defendant a right of action for the
Our conclusion is that an action for wrongful attachment may be maintained, for actual damages, without reference to whether a bond has been given and without proof of malice and want of probable cause.
But it is said by counsel that our holding was to the contrary when the cause was here on the other appeal. That view is a misconception of the opinion, for it is expressly stated by Judge Broaddtjs, at page 566 of the report, that if one fails in his attachment, he will be liable for the actual damage sustained.
But it is earnestly urged that if the foregoing view should be conceded, the refused instruction was erroneous in that it authorized, in. estimating actual damages, the allowance of reasonable and necessary expenses of the trial, including attorney’s fees. The ground taken is that if an action for wrongful attachment may be sustained, the measure of damages would be confined to the loss of property rights, etc., but would not include expense of trial, attorney’s fee, etc. A consideration of this point involves a partial repetition of what has been already written. We have stated that in ordinary eases costs are all that' a plaintiff may recover in addition to compensation for property loss, and we have stated that such cases were to be distinguished from this. This case presents a consideration of the damages arising from a wrongful attachment. The extraordinary process of attachment is allowed by statute, and that statute (secs. 370, 372, R. S. 1899) recognizes and authorizes damages beyond costs of the action. It authorizes and allows expense of preparation for trial, attorney’s fees,
The petition in this case was denominated an action for malicious attachment, for the reason that it included allegations of the writ being prosecuted maliciously and without probable cause. But in a case of this nature those allegations merely characterize the act and aggravate the damages. The wrongful attachment may exist without malice and probable cause; and proof of a wrongful attachment will sustain the action though there be no evidence of iqalice and want of probable cause, a failure of proof of the latter elements depriving the plaintiff of anything more than actual damages.
The foregoing disposes of the principal point made in the briefs and arg'ument and upon which it was determined in the trial court.' But defendant makes a suggestion which it contends should preclude plaintiff from any complaint at all, and that is that plaintiff was not the owner of the property attached. It appears that the property was capital stock, and plaintiff had sold it, whereby he became liable on a warranty of
The judgment is reversed and the cause remanded.