64 Tex. 98 | Tex. | 1885
This suit was originally brought to recover the value of some machinery of the plaintiff, alleged to have been wrongfully converted to the use of the defendant. Subsequently, by an amended petition, it was changed into a suit to recover damages for wrongfully suing out an attachment, and levying the same upon the machinery, and having it sold at a nominal price to satisfy a debt due from the plaintiff to the defendant.
This was, of course, a new cause of action, and should subject the plaintiff to the payment of all costs of suit accruing down to the date of filing the amended petition.
In passing, too, upon the special demurrer setting up limitation, time must be computed from the accrual of the cause of action down to the filing of the amendment.
But the right to set up a new cause of action subject to the payment of costs and to the right of the defendant to plead any de
We have held that it requires two years to bar an action of this character. Bear Bros. & Hirsch v. Marx & Kempner, infra.
If we can compute time from the day when the machinery was seized under the attachment, viz., the 12th of December, 1882, the action was not barred, for the amended petition was-filed on the 9th of December, 1884.
The cause of action could not have accrued at any earlier date, as the appellant could not have sued for the loss of his property before it was taken under the attachment. As to whether or not his right of action accrued at a later date, it is not necessary for us to decide for the purposes of this case. As two years had not elapsed from the accrual of the cause of action to the time of filing the amended petition, the court erred in sustaining the special demurrer setting up the statute of limitations as a defense to the suit.
Heither was the other special demurrer well taken. It is the law of this court that an attachment is wrongfully sued out when the grounds upon which it is based do not exist; and that the defendant in attachment is entitled to recover whatever actual damages he has sustained by the seizure of his property under the writ so wrongfully obtained. Bear Bros. & Hirsch v. Marx & Kempner, 5 Tex. Law Rev., 158.
The ground stated in this affidavit was that the appellant and a party jointly sued with him had transferred their property for the purpose of defrauding their creditors. This the petition denies, and alleges to be untrue in every respect. The claim of the plaintiff is for actual damages alone.
The value of the property attached is alleged to have been $1,400. At the sale under foreclosure of the attachment lien it brought only $45. That the appellant was actually damaged to a large amount by the unlawful seizure and forced sale of his property is therefore perfectly apparent from the allegations of the petition.
He did not claim damages for a malicious prosecution of the writ of attachment.
To such an action it might perhaps be pleaded, at least in mitigation of damages, that grounds of attachment other than those named in the affidavit existed at the time against the defendant in attachment. But under the previous decisions of this court allowing the recovery of actual damages in all cases where the affidavit is untrue, we do not think it would be any defense to an action for wrongfully suing out the writ. The non-residence of the appellant at the
The appellant, upon establishing the other allegations of the petition, would be entitled to a recovery of actual damages, whether there was a strict compliance with the statute regulating proceedings in suits by publication or not. His damages, if any, arose from the conversion of his property under a writ of attachment wrongfully sued out, and not from obtaining a judgment against him in an irregular manner. Had he been in court by personal service of citation, yet if a wrongful attachment sued out in the action had caused an illegal seizure and conversion of his property, he would still have been entitled to damages for the injury he had thereby suffered.
We think the court erred in sustaining the appellee’s demurrers,, and the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered May 1, 1885.]