Jones v. Fruin

• Decision Date: 02 May 1889
• Citation: 26 Neb. 76,42 N.W. 283
• Parties: JONES v. FRUIN.
• Court: Nebraska Supreme Court

26 Neb. 76

42 N.W. 283

JONES

v.FRUIN.

Supreme Court of Nebraska.

May 2, 1889.

Syllabus by the Court.

1. Under a general denial in an answer, nothing can be given in evidence which does not tend to prove or disprove the facts stated in the petition.

2. To sustain an action for malicious attachment of property, it is necessary to prove want of probable cause, malice, and damage to the plaintiff from the issuing of the attachment. Parmer v. Keith, 16 Neb. 91, 20 N. W. Rep. 103. Want of probable cause being shown, the question whether the defendant was actuated by malice is still one of fact, for the jury.

3. Petition examined, and held to state a cause of action.

Error to district court, Red Willow county; GASLIN, Judge.J. Byron Jennings, for plaintiff in error.

MAXWELL, J.

This action was brought by the defendant in error against the plaintiff in error, to recover for a malicious attachment of property. The answer is a general denial. On the trial of the cause a jury was waived. The cause “was submitted to the court upon the petition, answer, and evidence,” upon consideration whereof the court found the issues in favor of the defendant in error, and rendered judgment in his favor for the sum of $75, and, a motion for a new trial having been overruled, judgment was entered on the finding. An elaborate brief has been prepared and filed by the attorney for the plaintiff in error, in which a number of questions, including the advice of counsel, are discussed, and authorities cited in support of each proposition. The answer, however, being a general denial, the only matter in issue is the truth of the allegations of the petition. Railroad Co. v. Washburn, 5 Neb. 125;Allen v. Saunders, 6 Neb. 442;Railroad Co. v. Lancaster Co., 7 Neb. 33;Jones v. Seward Co., 10 Neb. 161, 4 N. W. Rep. 946; Maxw. Pl. & Pr. (4th Ed.) 128.

It is said that the petition does not state a cause of action, and that is one of the errors relied upon. The petition is as follows: “The plaintiff complains of the defendant for that on the 4th day of March, 1886, the said John S. Jones, defendant, commenced in the Red Willow county district court an action by attachment against the plaintiff for the recovery of money damages, alleging in the affidavit therefor, and as grounds for said attachment, that the defendant in said action is a non-resident of the state of Nebraska; that said defendant fraudulently contracted the debt and incurred the obligation upon which suit was brought. The clerk of said court thereupon, by direction of the said John S. Jones, without requiring the said John S. Jones to file an undertaking as required by law, and upon the representation of the said John S. Jones and his attorney that no undertaking in attachment was required in such case, issued an order of attachment in words and figures appearing in the certified copy of said order of attachment. * * * Pursuant to the commencement of said suit, and at the request of the defendant in this action, the deputy-sheriff of said county levied upon the following named goods and chattels of the plaintiff, to-wit: One bay horse, five years old; one roan horse, five years old; one set double harness, and one dray wagon. Said goods and chattels so taken by said officer were retained by him for a long time, to-wit, forty days. The plaintiff further alleges that said order of attachment was wrongfully, maliciously sued out, and no just grounds existed for issuing the same, and the statements in said affidavit as grounds therefor are false and untrue. On the 31st day of March, 1886, said attachment was dissolved by the consideration of Hon. WILLIAM GASLIN, Judge, and the property order discharged at the costs of the said John S. Jones. At the time said goods and chattels were levied upon, the plaintiff herein was engaged in the business of draying and delivering in the city of McCook, in which business the plaintiff used said goods and chattels, and by reason of said wrongful levy the plaintiff was interrupted and hindered in his business for a long time, to-wit, forty days, and this plaintiff's business wholly lost to him; that the team of horses, by reason of standing in the stable without sufficient exercise, were greatly injured and damaged. Plaintiff has been put to great expense and trouble in and about procuring the discharge of said attachment, and has been compelled to pay out a large sum of money as attorney fees, and was greatly injured in his (plaintiff's) credit by reason of said illegal suing out of said writ, all in the sum of two hundred dollars, as aforesaid sustained. Wherefore the said plaintiff prays judgment against the said defendantfor the sum of $200, his damages as aforesaid sustained, and costs of this suit.”

Section 200, Code Civil Proc., provides that “when the ground of the attachment is that the defendant is a foreign corporation, or a non-resident of the state, the order of attachment may be...