84 S.E. 362 | N.C. | 1915
This is an action to recover damages to his crops by an attachment levied in an action brought by the defendants against the plaintiff in 1903. That action was before this Court, (238)Mahoney v. Tyler,
On the new trial the jury found upon the issues submitted to them that the defendants wrongfully sued out the attachment without probable cause, and that by the negligence of the sheriff the crops of the plaintiff were damaged thereby to the extent of $500. The fourth issue, "What sum, if anything, is plaintiff Tyler entitled to recover of the defendant Mahoney?" the court answered, as a legal inference, from the responses to the other issues, "Nothing."
This raises the only question presented by this appeal, and that is whether the plaintiff who wrongfully sues out a writ of attachment, which is levied upon the property of the defendant therein, is liable to such defendant for damages to the property caused by the sheriff while in possession of the property. *304
The plaintiff is not proceeding against the sheriff, nor against the attachment bond, but against these defendants, who were the plaintiffs in the wrongful attachment because they put in motion the proceedings in which their crops were taken wrongfully and damaged.
The plaintiff herein having been put out of the possession of his property by abuse of the process of the law which was invoked by these defendants, they are responsible to the plaintiff (the defendant in that action) for the damage which he sustained thereby. The sheriff was their agent to execute the mandate of the court, issued at their instance. If the sheriff acted negligently, he might also be responsible, and the sureties on the attachment bond are also responsible, for the amount of the damage done. The plaintiff has not chosen to pursue either of these, as he might have done, but he has limited his demand to the principals at whose instance the process of the law was wrongfully put in motion.
In Mahoney v. Tyler,
We are of opinion that the defendants are responsible to the plaintiff for the damage done to his crops by the sheriff in executing the attachment, that was wrongfully sued out against him, as the jury find. In response to the fourth issue the judge should have held that as a matter of law the defendants were liable to the plaintiff in the amount of the damage found to have been sustained by the crops while in the custody of the sheriff, as found in the third issue, to wit, "$500 and interest from the date of the attachment." Allen v. Greenlee,
The case will be remanded, to the end that the judgment may be so entered in the court below.
Reversed.
Cited: Shute v. Shute,