Davis v. Baker , 88 Ill. App. 251 ( 1900 )

Mr. Presiding Justice Horton

delivered the opinion of the court.

In the brief and argument for appellant filed in this cause the “ Statement of Case” is as follows, viz.:

“ This is an action on the case brought by appellant against appellee, to recover damages for wrongfully, maliciously and. without probable cause, causing to be sued out and levied, a writ of attachment for the amount of $200 against the goods and chattels of appellee, by means of which her business was broken up, and her credit destroyed.”

lío other or further statement of the facts is presented by counsel for appellant, and his arguments are upon points of law. In such case he no doubt assumed, and correctly, that it was unnecessary to state facts in detail, other than incidentally, in presenting a point of law.

Counsel do not differ essentially upon the rules of law as to when an action will lie for maliciously suing out a writ of attachment, or what constitutes probable cause, or when malice may be inferred, or the effect of the advice of an attorney, or who may be regarded as an attorney whose advice may be acted upon. We shall not, therefore, cite or review the authorities upon these points.

Did the court below err in permitting appellee to prove the indebtedness of appellant to other parties? We think not. This proof was admitted presumably only as one of the facts present in the mind of appellee at the time he sued out the attachment referred to. One of the creditors of appellant had sued out an attachment before appellee did so. Appellee had been advised that certain statements had been made by appellant as to what she might do concerning a certain class of creditors, and it was not improper to show the facts in connection therewith.

The third instruction given to the jury at the instance of appellee is as follows, to wit:

“ The court further instructs the jury as a matter of law that if they believe from the evidence that before instituting the attachment proceedings complained of, the defendant, M. Baker, personally, or by his agent, fully, fairly and honestly communicated all the facts within his knowledge or which he could have ascertained with reasonable diligence touching the right of M. Baker & Co. to attach the goods of Jessie M. Davis, to his attorney, and that he acted upon the advice of his attorney in commencing such action, and in good faith, the jury should find the defendant not guilty.”

On behalf of appellant it is contended that this" instruction is erroneous because it does not state who may be considered such an attorney as that a person may act upon his advice. That instruction is faulty in the respect indicated. But such defect is fully cured by the seventh instruction given at the instance of appellant, which is as follows, to wit:

“ The jury are further instructed that when the advice of attorney or counsel is invoked as a defense, it must be shown that the counsel or attorney selected and advised with, wTas a regularly licensed attorney and counsellor, reputable in character, and so considered in the community competent to give legal advice on all matters pertaining to law. It is not sufficient as a defense that the person advising the prosecution held himself out as an attorney at law, and was believed to be such by the party consulting him, but it must be shown that the attorney counseled and advised with was a regular licensed attorney and counsellor, and of reputable character.”

It seems to us that the instructions given to the jury are unnecessarily, if not unreasonably, voluminous and prolix. Twelve were given at the instance of appellant, and. twenty on motion of appellee. They cover ten pages of the printed abstract. We are satisfied that there is no error in these instructions when considered as a whole, which would justify a reversal.

W hether appellee acted in good faith and upon evidence sufficient to create in the mind of a prudent and reasonably cautious- man a belief that the charges upon which the attachment was issued were true, are questions of fact for the jury. Ho reason is indicated by counsel or is apparent to us which would warrant an interference with the verdict of the jury upon these or other questions of fact.

W e observe no error which would justify a reversal in this case. The judgment of the Superior Court is affirmed.