Overton v. Sigmon Furniture Mfg. Co.

Opinion by THACKER, C. Plaintiff sues the defendant company in the instant case for the latter’s alleged wrongful attachment of the former’s property „ in a prior action by it against the former for debt in the county court of Stephens county; and the petition in the instant case, in so far as pertinent to the questions before us for review, alleges that the said attachment was wrongful and unlawful, based upon a false affidavit of grounds therefor, which was made with the intention of damaging the good name and credit of this plaintiff, who was then engaged in business as an undertaker and retail dealer in furniture in said county, that the same was wrongfully and unlawfully levied upon the plaintiff’s stock of merchandise, and “that said attachment suit * * * was abandoned * * * and said cause was fully disposed of * * * before the filing of this suit by * * * the plaintiff” (said defendant in the instant case) “by taking judgment for the sum sued for in that case; thereby waiving the attachment part of the suit in that court.” The defendant W. M. Cates, who is also sued with the defendant company, was the sheriff through whom the process in the attachment case was executed. A general demurrer was sustained to plaintiff’s petition in the instant case, and the only question before us is as to whether the petition states any cause of action as against the same. *534 It appears that the custom of London became incorporated in the common law, so that, in the absence of statutes, it may be that courts would nevertheless have the power to issue writs of attachment (2 R. C. L., Attachment, sections 2, .3, pp. 801, 802); but it appears that such power was not generally recognized in the United States, so that the attachment remedy is generally and must be regarded for all practical purposes as originating in and dependent upon statutory enactments (see Id.) ; and, in this jurisdiction at least, our statutes alone give a plaintiff "such remedy. It is true, however, as in other cases of malicious prosecution, that an action at common law may be maintained for wrongful attachment when the writ is sued out maliciously and without probable cause, in which case, if the pleadings and evidence warrant it, both actual and punitive or exemplary damage may be recovered. 2 R. C. L., Attachment, sections 112, 123, pp. 897, 898, 911, 912; Drake on Attachment (7th Ed.) sections 114, 745; 1 Shinn on Attachment and Garnishment, section 182, pp. 305-308, and section 377, p. 692; Floyd v. Anderson, 36 Okla. 308, 128 Pac. 249, 43 L. R. A. (N. S.) 788, Ann. Cas. 1915A, 348; International Harvester Company of America v. Iowa Hardware Company et al., 146 Iowa, 172, 122 N. W. 951, 29 L. R. A. (N. S.) 272; Ailstock v. Moore Lime Co., 104 Va. 565, 52 S. E. 213, 2 L. R. A. (N. S.) 1100, 113 Am. St. Rep. 1060, 7 Ann. Cas. 545; Ames v. Chirurg, 152 Iowa, 278, 132 N. W. 427, 38 L. R. A. (N. S.) 120. It is also true that in an action upon the undertaking which the plaintiff in attachment is required to give by section 4070, Stat. 1893 (section 4814, Rev. Laws 1910), only actual damages can be recovered. Floyd v. Anderson, supra. And that the action at com *535 mon law for both actual and exemplary, damages is an action ex delicto, entirely distinct - from the action ex contractu upon the statutory undertaking.. See authorities above cited. But, in regard to the recovery of actual damages in any form of action therefor, we think the effect of our statutes is to so modify the common law as to give a right of action for merely wrongful attachment and dispense with the necessity for the allegation and proof of malice and want of probable cause, it being sufficient to show that the attachment was wrongful. 3 Am. & Eng. Enc. L. 245, 246; McLaughlin v. Davis, 14 Kan. (168) 135; Connelly et al. v. Woods, 31 Kan. 359, 2 Pac. 773. The section of our statute above cited reads: “The order of attachment shall not be issued by the clerk until an undertaking on the part of the plaintiff has been executed by one or more sufficient sureties, approved by the clerk and filed in his office, in a sum not less than double the amount of .the plaintiff’s claim, to the effect that the plaintiff shall pay to the defendant all damages that he may sustain by reason of the attachment, including reasonable attorney's fees, if the order be wrongfully obtained; but no undertaking shall be required where the party or parties defendant are all ■ nonresidents of the state, or a foreign corporation.” This statute does not require plaintiff to execute an undertaking, but requires that one be executed in his behalf “by one or' more sufficient sureties,” who are thereby bound for the payment of “all damages” sustained “if the order be wrongfully obtained”; and, as a legislative intent to bind the sureties for damages beyond those for which the plaintiff is bound is too unreasonable to be admitted, the implication is plain and appar *536 ently necessary that the attachment plaintiff is bound independently of the “undertaking” contract and as matter of law, for such damages. If the mere wrongfulness of the attachment were not a ground for the recovery of actual damages, independent of the undertaking required by the statute, it anomalously would follow that, while a resident defendant could recover actual damages resulting from a mere wrongful attachment, a nonresident defendant or a fore gn corporation could not recover any damages whatever unless the writ was not only wrongful but was also maliciously and without probable cause sued out. Section 2718, Stat. 1890 (section 2948 Rev. Laws 1910), requires that we liberally construe the above-quoted section of our statutes with a view to effect its object and promote justice; and, when so construed, we think the implication that the attachment plaintiff is liable for a merely wrongful attachment, without regard to the undertaking which is required only in case one or more of the defendants is a resident or a domestic corporation, must be admitted. As against a general demurrer, the petition sufficiently shows that when this action was commenced the attachment in the prior action had been dissolved (Berry et al. v. Geiser Mfg. Co., 15 Okla. 364, 85 Pac. 699), which is the time of the accrual of the right of action either on the undertaking or independent of the same (4 Cyc. 837; McLaughlin v. Davis, supra; Hoge et al. v. Norton, 22 Kan. [374] 265; Kerr v. Reece, 27 Kan. 469; Baker et al. v. Skinner, 63 Kan. 83, 64 Pac. 981). In our. opinion, the petition, although subject to criticism, states a cause of action for actual damages as against the defendant company. *537 For the reasons, stated, the judgment of the trial court should be reversed, and the case remanded, with instructions to overrule the demurrer. By the Court: It is so ordered.