Culbertson v. Cabeen , 29 Tex. 247 ( 1867 )

Coke, J.

It is not necessary to invoke the rigid scrutiny which uniformly obtains in passing upon proceedings by attachment to lead to the conclusion that the court erred in overruling the motion to quash the attachment in this case.

The affidavit for attachment, which is the basis and ground-work of the proceedings, is so fundamentally defective, that the fourth assignment in the motion to quash, general and indefinite as it is, reaches and sufficiently presents it. The affidavit is sufficiently formal and correct, except in that part which attempts to set forth the ground on which the attachment was sought, which is in these words: “ Affiant further says, that said Culbertson is about to transfer or secrete his property,” &c. In order to entitle a party to an attachment, it is necessary, as a condition precedent to his right, that he shall make affidavit to some one of the various causes prescribed by the statute as a sufficient ground. [Paschal’s Dig., Art. 142, Note 259.]

That a party is about to transfer his property, for the purpose of defrauding his creditors, is one ground; that he is about to secrete his property, for the same fraudulent purpose, is another ground. Each one of these causes is a separate and distinct fact, independent of the other. To transfer property, is to place it in the hands of another. To secrete property, is to hide it, to put it where the officer of the law will probably not be able to find it. These two acts can in no sense be considered as phases of the same general fact. To embrace these two causes in the same affidavit makes the affidavit indefinite. Neither fact is sworn to. The affidavit is in the alternative. The affiant swears that one or the other fact exists, but does not say which. This is not a compliance with a statute which requires a positive and direct affirmation, under oath, of the existence of a certain fact, to entitle a party to the remedy by attachment. The general rule is well established, that an affidavit for an attachment must be certain and positive, and not in the alternative. (Hopkins v. Nichols, 22 Tex., 208.) The affidavit in this case does not conform to either of the requirements of this rule.

In Hopkins v. Nichols, 22 Tex., 208, the precise question arising on this affidavit was fully discussed by Mr. Justice Roberts, and the conclusion reached that the affidavit was fatally defective. That case is decisive of the insufficiency of the affidavit in this.

One of the notes sued on was due at the date of the institution of the suit; the other two, constituting more than two-thirds of the aggregate amount of the judgment, were not due at that date, and did not become due until several months thereafter. (The attachment in this case is not an original, but only an auxiliary proceeding, the ordinary process having been prayed, issued, and the defendant having appeared and answered.) [This is a mistake—Reporter.] The quashing of the attachment on account of the defective affidavit does not impair the right of the plaintiff below to proceed to judgment on so much of his debt as was due at the date of the institution of the suit. But, as to the notes not due at that time, the right of the party to sue, and of the court to entertain the suit, depends upon the attachment, for it is by attachment alone that a debt not due can be sued. The suit, therefore, as to these, must abide the fate of the attachment, and, as we have seen, that must fall on account of the defective affidavit. The suit cannot be maintained, and the plaintiff below cannot recover for the amount of the notes not due. (Hart. Dig., Art. 37; Sydnor v. Totman, 6 Tex., 196.)

If, after these notes became due, the plaintiff had, by an amendment, declared on them, and alleged the fact, and prayed judgment for the amount, this part of his suit would have been relieved of its dependence on the validity of the attachment for its standing in court, and the quashal of the attachment would not have destroyed the right of the plaintiff to proceed to judgment on his entire demand, without prejudice to the rights of the defendant to make such defenses as had accrued or were in existence up to the date of the filing of the amendment. But no such pleading, or anything tantamount to it, is found in the record, and therefore there is nothing to save this portion of the demand sued on from going out of court with the imperfect attachment on which it was solely based. It is not necessary to notice the various other errors alleged to exist in the attachment proceedings and assigned in the motion to quash.

We refrain from any expression of opinion upon the testimony introduced on the issue made by the defendant’s plea in reconvention, for damages for the alleged wrongful suing put of the attachment. Because of the error of the court, overruling the motion to quash, the judgment must be reversed and the cause remanded, and the issue will again be submitted to a jury.

The remedy by attachment is a harsh one. A party, upon his ex parte affidavit, can have the property of his debtor seized and taken from his possession, and thereby subject him to great inconvenience, his business to great interruption, and his .credit to great injury. The only security against the abuse of this most stringent and summary remedy is, the right of the defendant to require of his adversary a strict compliance with the conditions on which the remedy is granted, and if the remedy is pursued against him maliciously, and without probable cause, to hold the malicious prosecutor responsible in damages for his wrongful use of it. The party who resorts to an attachment process against his debtor does so at his peril. Ho belief, however firm and sincere, that the grounds set out in his affidavit for attachment are true, can affect the defendant’s right to recover against him the actual damage sustained, if in fact they are untrue. (Drake on Attach., § 174.) But if, besides being untrue, the party suing out the attachment acted maliciously, and without probable cause for believing the ground of the attachment to be true, he is liable, in addition, for vindictive or exemplary damages, as a punishment upon him for his wrongful and oppressive use of the process. Malice and the want of probable cause must both concur to support the charge of malicious prosecution. Heither is alone sufficient. If it were malicious and unfounded, but there was probable cause for suing out the attachment, nothing more than the actual damage sustained can be recovered. (2 Greenl. on Ev., § 453; Walcott v. Hendrick, 6 Tex., 407.) But malice may be implied from the want of probable cause, the implication subject to be repelled, however, by facts and circumstances indicating a fair and legitimate purpose and honest pursuit of a claim believed to be just. (5 B. Monr., 544; Mitchell v. Jenkins, 7 B. & A., 588, 594; Wiley v. Trawick, 14 Tex., 662.)

“In a legal sense,” says Mr. Greenleaf, in his work on Evidence, vol. 2, § 453, “any unlawful act done willfully and purposely to the injury of another is, as against that person, malicious.” It need not imply malignity, nor even corruption, in the appropriate sense of these terms. Any improper motive constitutes malice in the sense it is here used. (Drake on Attachment, § 733.)

The question of malice is for the jury, to be determined from the facts and circumstances proved. And so the question of probable cause, though a mixed question of law and fact, may ordinarily and properly be submitted to the jury, and the existence of probable cause may be implied by the jury from such facts and circumstances as lead to the inference that the party was actuated by an honest and reasonable conviction of the justice of his suit, or, with reference to this case, of the existence of the facts on which he based his application for the attachment. But in order to have this effect, it should appear that such facts and circumstances, or so much of them as was sufficient to induce the belief, were communicated or known to the party before he commenced his proceedings. (2 Greenl. on Ev., § 454.)

It is not deemed necessary to go into an extended discussion of principles of law so well settled as are those applicable to this case.

The charge of the court will not be reviewed, nor will any other of the various assignments of error be considered, because not necessary in the view we have taken of the case to its decision.

Judgment reversed, and cause remanded for further proceedings.

Reversed and remanded.