Gilmore v. Thwing

Tolman, C. J. This is an appeal by the plaintiff from a judgment of dismissal of his action, with prejudice, upon a motion for judgment on the pleadings and on the plaintiff’s opening statement to the jury. *458 The action is one for damages alleged to have been sustained by reason of the wrongful suing out of a writ of garnishment, or the abuse of process in serving the writ upon the garnishee defendant, a bank, in such a way and at such a time as to not only impound the appellant’s checking account, but also to cause the dishonor of a large number of his checks, each of which he had issued in due course and for a valuable consideration to innocent holders. Of course, it is alleged that the writ was in due course dissolved and quashed upon appellant’s motion. Appellant, a practicing attorney with a large clientele, further alleges that the acts of the defendants in so issuing and serving the writ were performed as a result of a conspiracy between them; that these acts were wrongful, illegal and malicious; and that, as a result, he suffered great damage to his personal credit, damage to his professional standing and to his business, great humiliation, disgrace, and loss of his peace of mind, in the aggregate amounting to the sum of $100,000. The opening statement to the jury followed the allegations of the complaint, and went no further, in any respect material here, except to indicate that appellant was so perturbed mentally by the acts complained of as to affect his health and cause him to be unable to attend to his professional duties for a period of several months. Neither in his complaint nor in the opening statement did appellant claim any damage for the detention of his money on deposit, the measure of which damage would, of course, be interest on the sum detained ; nor was anything alleged or said as to any expense incurred in procuring the dissolution of the garnishment. Appellant refers to this as an action for malicious prosecution of a civil action, and also as an action *459 for the malicious abuse of process. It may simplify the issues to say now that we see it as an action of malicious prosecution of a civil action, and find no allegation or statement upon which to base a holding that there was here shown any abuse of process. Whatever was done illegally, wrongfully, or at all, by the respondents was done to procure the issuance of the writ of garnishment. Had that writ been rightfully issued, it would have been rightfully served upon anyone designated as being indebted to the appellant. The bank was so indebted, and if the writ had been rightfully issued, its service upon the bank would have been rightful; hence there can be no basis for the claim of abuse of process. This is an action for malicious prosecution of a civil action, the basis for which was the acts done by the respondents in causing the writ wrongfully to issue. It must not be confused with an action for malicious prosecution of a criminal action, or with an action on the garnishment bond. Whether the wrongful actions of the respondents were done as a result of a conspiracy, whether they were malicious or not, is all immaterial. The gist of the action is the wrong done to the appellant in causing the garnishment of his funds. None of the elements of damage alleged or stated by the appellant are recoverable in such an action as this. McGill v. Fuller & Co., 45 Wash. 615, 88 Pac. 1038, was an action to recover damages for the wrongful and malicious suing out of a writ of attachment. A garnishment is the attachment of a credit or credits, and the rule is the same whether one attaches tangible physical property by means of a writ of attachment, or attaches credits by means of a writ of garnishment. In the case just cited, it was held that, in such actions as this, recovery might be had (1) for the loss of as *460 certainable profits flowing from an established business; (2) for the reasonable value of the use of property during the period of detention; and (3) damages for injury to property, if any. It was distinctly there held that, in such an action as this, there can be no recovery for injury to reputation, pride, feelings or to one’s credit, and the reason given therefor applies with equal force to impairment of health caused by mental distress so arising. The case is well reasoned, and stands now as it was first written, wholly unlimited by any decision since handed down by this court. Again, in Melcher v. Clark, 145 Wash. 95, 258 Pac. 1032, 54 A. L. R. 448, the same questions were presented and decided. The McGill case was cited, approved and followed; so that the law must now be considered as settled. See, also, James v. Connell, 135 Wash. 80, 237 Pac. 8, more especially as to damages for detention of money being limited to interest. Appellant seems to rely upon Olson v. Haggerty, 69 Wash. 48, 124 Pac. 145; but that case is distinguishable because it was based upon the wrongful issuance and use of a search warrant in an attempt to locate stolen property. Clearly, a search warrant partakes of the nature of a criminal proceeding, and is issued and used to uncover evidence of crime and to ascertain facts which may be a basis for some criminal charge to follow. Therefore, to the Olson case, the rule applicable in actions for malicious prosecution of a criminal action was properly applied, and the case is not an authority here. Manhattan Quality Clothes v. Cable, 154 Wash. 654, 283 Pac. 460, also relied upon by the appellant, holds only that no action lies for the malicious prosecution of a civil action where there has been no arrest of the person or attachment of property. That case does not attempt or purport to determine the kind or nature of *461 damages which may or may not be recoverable where property has been wrongfully attached. Appellant having failed to set forth any actionable wrong suffered by him as the result of the respondents ’ actions, the judgment is right, and it is therefore affirmed. Main, Beals, and Mitchell, JJ., concur.