Hilliard & Hilliard v. Wilson

Willie, Chief Justice. This case was dismissed in the court below for the alleged reason that the district court of Burleson county had no jurisdiction of Sylvain Blum, or of the firm of Leon & H. Blum, and that the petition showed no cause of action against S. G. Wilson, the other defendant. The present suit grew out of an •attachment proceeding commenced by the above firm, in Galveston county, against the appellants. The attachment writ sued out in that proceeding was placed in the hands of the defendant Wilson, then sheriff of Burleson county, to be levied upon property of the appellants, situated in that county. Wilson levied the writ upon the property, and sold it, as is alleged, at less than one-tenth of its value. To give the plaintiffs below a cause of action growing out of these proceedings, it was alleged, among other things, that the attachment was sued out wrongfully, maliciously and without probable cause, as the issuance of the writ was followed by a seizure of the property of appellants. If their allegations in this respect were true, they were, under the previous decisions of this court, entitled to sustain a suit for damages against the plaintiffs in the attachment proceeding. Cahn v. Bonnett, 62 Tex. 674; Carothers v. McIlhenny Co., 63 Tex. 138; Jacobs v. Crum, 62 Tex. 401. Without other averments besides these, as to the suing out of the writ wrongfully, maliciously and without probable cause, and its subsequent levy by the sheriff upon the property of the Hilliards, there would have been no cause of action shown against Wilson, and the malicious prosecution alleged against the Blums must have been redressed by means of a suit instituted in Galveston county, where the attachment proceedings were commenced. Hubbard v. Lord, 59 Tex. 384. The process under which the sheriff seized the property of the appellants shielded him from any suit for damages at the instance of the defendants in the writ, and the plaintiffs in the writ could be sued only in the courts of their residence or where the attachment proceedings were commenced. But the petition goes further, and charges that the plaintiffs in [290] attachment, having indemnified the sheriff for the purpose of inducing him to carry out their unlawful designs, combined and confederated with him to sacrifice the property of the appellants, which had been levied on under the writ. This unlawful design was accomplished by the sheriff selling the goods without reasonable and proper notice of the time and place of sale, and by selling the same in bulk instead of in small lots, when but few persons were present; and for these reasons the property was struck off to the plaintiffs in attachment, at the exceedingly small price before stated. It is alleged that if the sale had been advertised and conducted in a legal and' just manner the goods would have brought from twelve to fifteen times the amount at which they were struck off to the plaintiffs in the attachment suit. These allegations make out a far different case from that of an ordinary suit for malicious prosecution. They charge against the sheriff acts of wrong and oppression which he was not authorized to commit in the execution of the writ of attachment, and from the consequences of which, therefore, that writ could not protect him. In the proper use of the process, according to its command, he was shielded from accountability; for its abuse he was answerable as a trespasser. If the sheriff is commanded to seize sufficient property under a writ of attachment to make a debt of specified amount, and he willfully seizes ten times as much goods as are necessary for that purpose, and deprives the defendant of the possession and use of them, he commits as flagrant a wrong as if he had seized the excess without any process whatever. It is as much an abuse of the writ to fraudulently and willfully sacrifice the property after levy for the benefit of the attaching creditors as it is to wrongfully and oppressively seize, originally, more than the writ commands. We think, therefore, that the illegal and oppressive execution of the writ by the sheriff made him a trespasser, and that a cause of action was shown against him in the petition, for which, of course, he could be sued in Burleson county, where he resided and the wrong was committed. We think, further, that, as the plaintiffs in attachment instigated these acts of the sheriff, and combined and confederated with him to have them performed, they were accessories to his conduct and participants in his oppressive acts, and trespassers equally with himself, their trespass relating back to the very commencement of the attachment proceedings. In this trespass they were, under our statute, liable to suit in the county where it was committed, and the court below improperly held that Burleson county had no jurisdiction of the cause. [291] In making this decision, we adhere to the rule as laid down in Hubbard v. Lord, that suits for malicious prosecution must be commenced in the county where the process of the law was unjustly and maliciously sued out; and that for a proper and legal execution of such process, according to its mandates, the officer of the law to whom it is directed incurs no liability to the injured party. But if the officer goes further, and, overstepping the bounds of discretion allowed him by the writ, makes use of it to wrongfully and unnecessarily oppress and injure the defendant, he commits a trespass for which a civil action will lie against him. If the plaintiff in attachment instigates or countenances such wrong and oppression, he becomes a participant in the trespass, and is liable to suit, either in the courts of his residence, or in that in which the proceedings are commenced, or in that in which the trespass by the officer was committed. Any expressions to be found in Cahn v. Bonnett, 62 Tex. 674, or any other cases in our reports, which appear to be inconsistent with these rules, will not be hereafter regarded as authoritative. We think that the allegations of the present petition were sufficient to give the district court of Burleson county jurisdiction of the cause, and that the court erred in sustaining the demurrers of the appellees and in dismissing the suit. For this error the judgment must be reversed and the cause remanded. Reversed and Remanded. [Opinion delivered January 19, 1886.]