McLaughlin v. Davis

*169 The opinion of the court was delivered by Brewer, J.:

Davis commenced an action against McLaughlin, and caused an attachment to be issued and levied on his goods. On motion this attachment was dissolved, and thereupon McLaughlin commenced this action to recover damages for its wrongful issue and levy. A demurrer to this petition was overruled, and of this plaintiff in error complains. The petition is not on the attachment undertaking, but alleges the issue and levy of the attachment, its dissolution, that the statements in the affidavit were absolutely false, and that McLaughlin “wrongfully, willfully, maliciously, and with intent to injure,” sued out the attachment. It is insisted, that “the petition should have averred want of probable cause for the suing out of the order, and the determination of the attachment suit.” Neither of these is necessary. A party is entitled to an attachment only when certain facts exist, not when there is probable cause to believe that they exist. Civil code, §190. If they do not exist, the attachment is wrongfully issued, and the party causing it to issue is liable for all the damages actually sustained. Nor is it necessary in such case to set out or sue on the undertaking. If the surety in the undertaking is liable, a fortiori the principal is, and that, not by reason of the undertaking, but of the act for which it was given. Nor need the determination of .the attachment suit be averred. The attachment is but ancillary to the action in which it was issued. It stands or falls without affecting the progress or termination of that suit. A party may have a just cause of action, but no right to an attachment; nor can he justify a wrongful attachment by a valid action. Hence the claim for damages for a wrongful attachment does not depend upon and need not wait for the termination of the action. In this petition, it is true, there are allegations appropriate to an action for malicious attachment, and unnecessary in one for a mere wrongful attachment. But all these may be ignored, as surplusage. There is not enough to make out the former action, but *170 ample for the latter. Of course, being simply an action for a wrongful attachment only 'actual damages can be recovered, and the court will on the trial exclude from the jury all those other considerations which may properly be submitted in cases of malicious and willful wrong. The order will be affirmed.

All the Justices concurring.