Jaksich v. Guisti

— 110 — By the Court, Norcross, J. (after stating the facts): It is the contention of counsel for appellant that the judgment cannot be sustained for the reason that this was an action for the malicious prosecution of an attachment, and the court having found that the attachment was not procured maliciously, and that plaintiff in the attachment suit, appellant herein, acted with probable cause in instituting the action and causing the issuance and levy of said attachment, had no other alternative than to render judgment for the appellant — citing Levey v. Fargo, 1 Nev. 415; Fenstermaker v. Page, 20 Nev. 290; Cassinelli v. Cassinelli, 24 Nev. 182. All authorities agree that malice and want of probable cause are essential facts to be alleged and proved in an action for damages for malicious prosecution. In this action it appears, however, that the several. pleadings filed by the respective parties set up all the facts growing out of the action instituted by the appellant herein for the recovery of the leased premises, and for damages for the rent alleged to be due and the unlawful detention of the premises. All the facts being before the court, the question arises whether the court, notwithstanding the failure to establish malice and want of probable cause in the issuance of the attachment, could, nevertheless, order a judgment entered in accordance with other facts actually found within the issues made by the pleadings, and which the parties may have and which it would seem they did actually litigate before the court. There is no bill of exceptions showing that any objection was made to a consideration of any other questions than those of malice and want of probable cause, and we are not called upon to determine what should have been the course pursued by the court below if such objection had been interposed. In this state the defendant in an attachment suit, where the attachment has been wrongfully issued, has an action upon the attachment bond for actual damages sustained not exceeding the amount of the penalty of the bond. If the attachment has been procured maliciously — 111 — and without probable cause, he may proceed under the common law in an action for malicious prosecution. (Mitchell v. Silver Lake Lodge, 29 Or. 294, 5 Pac. 798.) In the latter action all damages that might be recovered in an action upon the bond may be recovered, but the defendant in the attachment suit is not limited in his right to recover damages in his action for malicious prosecution of the attachment, as he is in the case of an action upon the bond for a wrongful attachment merely. (Hall v. Forman, 82 Ky. 505.) An action upon the attachment bond may be instituted without joining the sureties. (Bank v. Mayer, 100 Ga. 87, 26 S. E. 83; 4 Cyc. 850.) The fact that the attachment lien was merged in the judgment lien, and that the property attached was sold under execution upon the judgment, does not relieve from liability upon the attachment bond. (Bennett v. Brown, 20 N. Y. 99; Ball v. Gardner, 21 Wend. 270.) Where an action has been brought for the malicious prosecution of an attachment and a judgment for damages recovered, it has been held that no further right of action exists upon the bond, for the reason that all damages that could be recovered upon the bond may be recovered in the other action. (Hall v. Forman, supra.) There is another element of liability shown by the fac.ts of this case. The attachment could only be justified upon the allegation in the complaint in the attachment suit that rent was due and unpaid by the terms of the lease. It appears from the opinion of the learned judge of the court below embodied in the record that the terms of the lease required that the rent be paid three months in advance, and it was doubtless this provision which occasioned a judgment for rent by the justice’s court which was not awarded upon the trial upon appeal. Be that as it may, no allowance was made in the judgment upon appeal for any rent alleged to be due, and which was awarded to the plaintiff in the judgment rendered in the justice’s court from which the appeal was taken. While the judgment upon appeal was in — 112 — favor of the plaintiff for the restitution of the leased premises, the same as in the justice’s court, the disallowance of any judgment for rent or damages was such a modification of the judgment as to make it inequitable to allow to stand the sale of the attached property upon execution upon the judgment entered in the justice’s court. (Martin v. Victor M. Co., 19 Nev. 197). See, also, section 430, Drake on Attachment. Freeman in his work on Judgments, sec. 482, says: "Upon the reversal of the judgment against him, the appellant is entitled to the restitution from the respondent of all the advantages acquired by the latter by virtue of the erroneous judgment. * * * Whether the defendant may elect to affirm the sale, notwithstanding the reversal of the judgment, and recover of the plaintiff the damages resulting therefrom, is an unsettled question. In California the defendant may, at his election, affirm the sale, and recover of plaintiff the value of the property lost thereby. ” (Reynolds v. Hosmer, 45 Cal. 630.) This court in Martin v. Victor M. Co., supra, quoted from the California decision last cited the following: "The doctrine formerly prevailed that whenever a sale was made under an erroneous decree or judgment, which was afterwards reversed, the court rendering the judgment having jurisdiction of the person and subject-matter, the purchaser acquired a good title, notwithstanding the reversal. It was enough, it was said, for the buyer to know that the court had jurisdiction, and exercised it; and that the judgment, on the faith of which he purchased, was made, and authorized the sale. With the errors of the court he had no concern. The former owner was then turned over to an action for damages to make good the loss of his property. That doctrine is now so far modified that, if the plaintiff in the judgment be himself the purchaser, the former owner, after reversal, may at his election, either have the sale set aside and be restored to the possession, or have his action for damages.” — 113 — We need not determine what rule should have applied if it had been found that the property purchased at the execution sale by the appellant was in his possession at the time of the trial in the court below. If, prior to the trial, he had disposed of it, he was unquestionably liable for its value to the plaintiff in the attachment suit; It does not appear that there was any offer to restore this property, or that there was any request for a finding as to the possession, or a request for a modification of the judgment directing its restoration in lieu of the judgment for its value. Upon the question of the measure of damages, we think it well settled that it is the value of the property at the time of the execution sale, rather than the amount for which the property may have been sold. As said in Smith v. Zent, 83 Ind. 87, 43 Am. Rep. 61: "The amount received at such sale may not, however, compensate the owner for the loss sustained, and hence it is equally well settled that where personal property is sold upon a judgment, which is afterwards reversed, the owner may recover the value of the property sold from the judgment plaintiff. (Reynolds v. Hosmer, 45 Cal. 616; South Fork Canal Co. v. Gordon, 2 Abbott, U. S. 479; McJilton v. Love, 13 Ill. 486, 54 Am. Dec. 449; Bank of United States v. Bank of Washington, 6 Pet. 8, 8 L. Ed. 299; Freeman, Judgments, 482.)” It would seem from the record in this case that the judge of the court below, after determining that there was not malice or want of probable cause in the procurement of the attachment, proceeded and tried the cause upon the theory of the liability of the defendant to respond in damages to the extent of the value of property wrongfully attached and subsequently sold upon execution to satisfy a money judgment, which upon appeal was, in effect, set aside. The right of the court to enter such a judgment, in view of the nature of the action, is contested by counsel for appellant in an exceptionally able and exhaustive brief. We have reached the — 114 — conclusion to affirm the judgment, notwithstanding the nature of the action, because, as we have before intimated, the questions determined by the court could in the absence of objection have been litigated in the action, for the action for damages for the alleged malicious prosecution of the attachment included a consideration of all the facts upon which the judgment actually entered was based. It was very natural for the court to seek a final determination of the controversy between the parties and to avoid a multiplicity of suits with attendant costs. It was to the advantage of the litigants that their ■ rights be determined in that action, and that the legal effect of the facts established be declared rather than to require a resort to another suit where the change in the character of the action would be more of form than of substance. Where upon appeal it is simply a question of whether the judgment is supported by the pleadings and findings, a liberal rule should prevail; and if it appear that the judgment is in accordance with facts found, which findings were appropriate to the issues framed by the pleadings and litigated in the action, we think the judgment ought to be affirmed. Judgment affirmed.