Brooks v. Sanger Bros. , 69 Tex. 24 ( 1887 )

Acker, Judge.

The only question presented by the record in this case is, are there sufficient allegations remaining in appellant’s petition, as stated, and to show a cause of action against appellees, after giving effect to the special exceptions sustained bv the court. The court below, and counsel for appellees, appear to have considered the case an action to recover damages-for the libel alleged to have been committed, in making and publishing the affidavit for attachment. Counsel for appellant insist in their brief that the suit is an action for “malicious prosecution,” or to recover damages for the wrongful and malicious use of the writ of attachment. We confess that we have experienced much difficulty in determining, from the petition, just what the pleader intended to state, as constituting appellant’s cause of action. The petition contains eight pages closely written in small type upon a typewriter, and is largely made up of allegations of wrongs suffered, and damages to fair name and character, by reason of being falsely accused by appellees of the commission of a crime, in alleging in their affiadavit for attachment that the debt sued for was due for property obtained Under false pretenses. The petition is very prolix, and contains very many statements and allegations that could subserve no Useful purpose.

We believe, however, that, leaving out of consideration so much of the petition as comes fairly within the purview of the special exceptions sustained by the court, it appears from the remainder of the petition that a cause of action is substantially stated. It is alleged that appellees, without probable cause, wrontgfully, unlawfully and maliciously, and with intent. $0 injure, harrass and oppress appellant, sued out a writ of attachment and had appellant’s property, of the value of fifty dollars and eighty cents, seized thereunder and sold; and that appellant had ’been damaged by the unlawful seizure of his property and the' suing out by appellees of the wrongful, willful and malicious attachment, in the sum of ten thousand dollars.

We think the court erred in dismissing the suit, and for this error we are of opinion that the judgment of the district court . should be reversed and the cause remanded.

JReversed and remanded.

Opinion adopted October 28, 1887.