Cahoon v. Hoggan , 31 Utah 74 ( 1906 )

BAR.TCH, C. J.

This action was brought to recover damages for the attaching, by the defendant, of the plaintiff’s goods and chattels in an action between the same parties, wherein the plaintiff herein was defendant, and the defendant herein was plaintiff. It is alleged in the complaint that on November 6, 1901, the defendant commenced an action against the plaintiff to collect the sum of $370 which was alleged to be due on a promissory note, and caused a writ of attachment to be issued and levied against the property of the plaintiff at the time fixed for his departure from the state; that at the trial of that cause the plaintiff prevailed, and recovered judgment against the'defendant for the sum of $19.10 costs; and that, because of the suit and attachment proceedings, the plaintiff was delayed, at great cost to him, with his goods and chattels, in his departure or emigration from the state, and by reason of such delay was damaged in the sum of $500. To this complaint the defendant interposed a demurrer, upon the ground that no cause of action was stated. The demurrer was overruled, and at the close of the trial judgment rendered, in favor of the plaintiff, in the sum of $64.68. The action of the court in overruling the demurrer presents the decisive ■question for our determination.

The appellant insists that, as this is a prosecution for the wrongful institution of a suit and issuance and levy of an attachment, the complaint, which contains no allegation whatever against the bona tides of the suit, or that the issuance and levy of the writ of attachment was wrongful or without probable cause, states no cause of action, and that the demurrer ought to have been sustained. We are of the opinion that this contention is sound. In every case of this character, it is incumbent upon the plaintiff to allege and prove, not only that the action of v/hich he complains failed upon trial, but also that the attachment proceedings were wrongfully instituted and the writ wrongfully issued and levied. The wrong .committed by the issuance and levy of the writ without cause, or probable cause, and damage resulting therefrom, constitute the gist of such a suit, and hence, when, as here, the complaint contains no allegation of wrongfulness, it states no cause of action, and tbe complainant cannot prevail. This is so, whatever the motive or malice that may have prompted the vexatious suit.

“Inasmuch as there can be no recovery for an attachment which is-not wrongful, although the motive of the person suing it out may have-been malicious, it must follow that, whatever may be the form of proceedings adopted in seeking to recover damages for an attachment, -the pleadings of the attachment defendant must show that the attachment was wrongfully sued out. The sufficiency of the allegations on this score-depends somewhat on the character of the proceedings in which it is sought to recover damages.” (4 Cyc. 853, 834, 841, 845, 874; Hamer v. Nat. Bank, 9 Utah 215, 33 Pac. 941; Williams v. Hunter, 14 Am. Dec. 597; Gurley v. Tomkins [Colo.], 30 Pac. 344; Burton v. Knapp, 14 Iowa 196, 81 Am. Dec. 465.)

We do not deem it important to discuss any o-f the other-questions presented.

The judgment must be reversed, with costs, and set aside,, and the case remanded with instructions to the court below to sustain the demurrer and proceed accordingly. It is so ordered.

McCARTY, J., concurs.