Kyzer v. Middleton ( 1883 )

Chalmers, J.,

delivered the opinion of the court.

Middleton sued out an attachment for rent against Kyzer upon affidavit that the rent was not due, but that the tenant was removing his property from the demised premises so that no distress could be made. Code of 1880, § 1304.

Property to the amount of one hundred and thirty-five dollars was seized and sold under this writ; and subsequently Kyzer brought the present action upon the attachment bond given by Middleton to recover damages in double the amount for which the property was sold, as indicated by § 1311 of Code of 18801

The action cannot be maintained. It is confined by its terms to cases where there has been sales of property under attachments for “rent pretended to be due and in arrear, where in truth.no rent or other thing is due or in arrear.”

It cannot be brought, therefore, where the attachment is brought for rent not due upon affidavit that the property upon the demised premises is being removed.

In such eases the remedy of the tenant, where the attachment is wrongful, is pointed out by §§ 1312-1315 inclusive, that is, by replevying the property and obtaining judgment for damages on the bond as indicated by § 1315. It is only where the landlord falsely pretends that there is something due where in truth nothing is due, that the tenant can without replevying the property maintain a suit on the bond for double damages under § 1311.

Judgment affirmed.