Punchard v. Taylor, Hadden & Co. , 23 Tex. 424 ( 1859 )

Wheeler, C. J.

It is not perceived that there is anything in this case to distinguish it from others in which it has been held, that damages occasioned by the wrongful sueing out of an attachment may be pleaded in reconvention. (Walcott v. Hendrick, 6 Texas Rep. 406; 18 Id. 390; 15 Id. 437.) A judicial attachment does not issue, of course, upon the return of the officer, that the defendant is not to be found. It only entitles the plaintiff to sue out the attachment. (Dig., Art. 22.) But it is alleged in the plea, that the return of non est inventus, was made before the return day of the writ, at the instance, and by the procurement of the plaintiffs, and in order that they might obtain the attachment, when personal service might have been had ; and that the attachment was wrongfully, vexatiously and maliciously sued out, and special damage is alleged. If the averments of the plea be true, the defendant must have a cause of action.

It is objected, that the damages cannot be pleaded by one of the defendants alone. But the cause of action accrued to but one of the defendants. It is properly pleadable in reconvention, in this suit, because it grew out of the conduct of the suit, and is necessarily connected with and incidental to the main action.

It is no answer to the plea, that the officer is responsible. His liability will not relieve the plaintiffs from the consequences of their own wrongful acts. We are of opinion that there was error in sustaining exceptions to the plea, for which the judgment must be reversed and the cause remanded.

Reversed and remanded.

Bell, J., did not sit in this case.