Long v. Burley State Bank

• Citation: 165 P. 1119,30 Idaho 392
• Parties: D. W. LONG and A. W. LONG, Respondents, v. BURLEY STATE BANK, a Corporation, Appellant
• Decision Date: 03 May 1917
• Court: Idaho Supreme Court

165 P. 1119

30 Idaho 392

D. W. LONG and A. W. LONG, Respondents, v. BURLEY STATE BANK, a Corporation, Appellant

Supreme Court of Idaho

May 3, 1917

ATTACHMENT-LEVY-DAMAGES-LOSS OF PROFITS-MALICE-PROBABLE CAUSE.

1. Before recovery can be had because of an attachment procured wrongfully, maliciously and without probable cause, it must be shown that the property alleged to have been attached was actually levied upon in substantial conformity with sec 4307, Rev. Codes (amended, Sess. Laws 1911, chap. 162, p 559).

2. Loss of profits in business is an element of damage where the attachment was procured with malice and without probable cause, but may be recovered only upon the production of such evidence as will enable the jury to calculate, with a reasonable degree of certainty, the amount of damage resulting from such loss.

3. Malice and want of probable cause, if relied upon as an element of damage, must be alleged and proved. The jury may infer malice from the want of probable cause, but it may not infer want of probable cause alone from the fact that the suit in aid of which the attachment issued was decided against the party procuring it.

[As to what is abuse of attachment, and the liability therefor, see note in 86 Am.St. 400]

APPEAL from the District Court of the Fourth Judicial District, for Cassia County. Hon. Edward A. Walters, Judge.

Action to recover damages for procuring an attachment wrongfully maliciously and without probable cause. Judgment for plaintiffs. Reversed.

Reversed and remanded. Costs awarded to appellant. Petition for rehearing denied.

J. C. Rogers and T. Bailey Lee, for Appellant.

One cannot set up the volume of business done by others to establish the amount that he himself might or would have done. (O'Grady v. Julian, 34 Ala. 88; Smith v. Eubanks, 72 Ga. 280.)

At no time did plaintiffs show that this attachment prevented them from completing any work by them undertaken. They did not seek to show what profits they would have made, but endeavored to speculate upon what they might have made. Such hoped-for profits are too remote and speculative to be considered as proper elements of damage. (2 Greenleaf on Evidence, pars. 256-261; Barnes v. Berendes, 139 Cal. 32, 69 P. 491, 72 P. 407; Pacific Steam W. Co. v. Alaska etc. Assn., 138 Cal. 632, 72 P. 161; Beck v. West, 87 Ala. 213, 216, 6 So. 70; Howard v. Stillwell etc. Co., 139 U.S. 199, 11 S.Ct. 500, 35 L.Ed. 147; Livingston v. Exum, 19 S.C. 223; Stell v. Pascal, 41 Tex. 640; Bingham v. City of Walla Walla, 3 Wash. 68, 13 P. 408.)

"Anticipated profits dependent upon future contingencies cannot be included in damages." (Bergen v. City of New Orleans, 35 La. Ann. 523; Martin v. Deetz, 102 Cal. 55, 41 Am. St. 151, 36 P. 368; Crymble v. Mulvaney, 21 Colo. 203, 40 P. 499; O'Neill v. Johnson, 53 Minn. 439, 39 Am. St. 615, 55 N.W. 601; Anderson v. Taylor, 56 Cal. 132, 38 Am. Rep. 52; Casper v. Klippen, 61 Minn. 353, 52 Am. St. 604, 63 N.W. 737.)

"Where a stock of goods is held under a wrongful attachment, loss of profits and business credit are too remote to be considered." (Lowenstein v. Monroe, 55 Iowa 82, 7 N.W. 406.)

"It was error to permit plaintiff to show that prior to the attachment his business had been steadily increasing but decreased thereafter." (Zinn v. Rice, 161 Mass. 571, 37 N.E. 747.)

The plaintiffs had wholly failed to establish upon the part of defendant either malice or want of probable cause in the suing out of attachment--both indispensable to a recovery by plaintiffs. (Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116; Vesper v. Crane Co., 165 Cal. 36, 130 P. 876, L. R. A. 1915A, 541; Mitchell v. Silver Lake Lodge, 29 Ore. 294, 45 P. 789; Hilfrich v. Meyer, 11 Wash. 186, 39 P. 455.)

While malice may be presumed from a want of probable cause, yet such want may not be presumed, but must be clearly proven. (Collins v. Shannon, 67 Wis. 441. 30 N.W. 730; Durr v. Jackson, 59 Ala. 203.)

The officer acquired no lien. The officer levying must take actual possession of personal property. (3 Standard Ency. Procedure, 488, 511; West Coast S. F. Co. v. Wulff. 133 Cal. 315, 85 Am. St. 171, 65 P. 622; Johnson v. Gorham, 6 Cal. 195, 65 Am. Dec. 501.)

A levy on personal property capable of manual delivery must be had by taking the property into custody. (Dutertre v. Driad, 7 Cal. 549; Herron v. Hughes, 25 Cal. 555. 563; Bagley v. Ward, 37 Cal. 121, 99 Am. Dec. 256; Throop v. Maiden, 52 Kan. 258, 34 P. 801.)

"If the acts required by the statute are not performed by the officer, there is no levy of the writ." (First Bank v. Sonnelitner, 6 Idaho 21, 51 P. 993.)

The lien is lost if the property is left with the defendant. (3 Standard Ency. Procedure, 512, 513, and citations; Cupples v. Level, 54 Wash. 299, 103 P. 430, 23 L. R. A. , N. S., 519.)

S. T. Lowe, for Respondents.

"In an action to recover for the wrongful and malicious attachment of the plaintiffs' goods where injury to their credit is alleged, evidence of the amount of their business and profits and credit and the effect upon the latter is admissible." (Hayes v. Union Mercantile Co., 27 Mont. 264, 70 P. 975.)

Loss of credit, business and profits caused by the wrongful, wanton and malicious issuance and levy of a writ of attachment may be recovered as damages in an action to recover for such malicious attachment. (Allison v. Chandler, 11 Mich. 542; Lambert v. Haskell, 80 Cal. 611, 22 P. 327; Tranwick v. Martin-Brown Co., 79 Tex. 46, 14 S.W. 564; Western News Co. v. Wilmarth, 33 Kan. 510, 6 P. 786; Donnell v. Jones, 17 Ala. 689, 52 Am. Dec. 194; Goldsmith v. Picard, 27 Ala. 142; Lawrence v. Hagerman, 56 Ill. 68, 8 Am. Rep. 674; 1 Shinn, Attachment and Garnishment, par. 379; Waples on Attachment and Garnishment, par. 1010; 6 Corpus Juris, 540, pars. 1321-1323; Schwartzberg v. Central Ave. State Bank, 84 Kan. 581, 115 P. 110.)

It was not essential that the officers touch or remove the machine for the levy to be valid. (Battlecreek Valley Bank v. Madison First Nat. Bank, 62 Neb. 825, 88 N.W. 145, 56 L. R. A. 124; Gaines v. Becker, 7 Ill.App. 315; Morse v. Smith, 47 N.H. 474; Nighbert v. Hornsby, 100 Tenn. 82, 66 Am. St. 736, 42 S.W. 1060.)

"It is sufficient if the property is under the control of the officer, and he may even leave the debtor to hold as his agent" (Corniff v. Cook, 95 Ga. 61, 51 Am. St. 55, 22 S.E. 47; Baldwin v. Jackson, 12 Mass. 31; Treadwell v. Brown, 43 N.H. 290; Train v. Willington, 12 Mass. 495.)

Want of probable cause in itself raises a presumption of malice. (Brand v. Hinchman, 68 Mich. 590, 13 Am. St. 362, 36 N.W. 664; Murphy v. Hubbs, 7 Colo. 541, 49 Am. Rep. 366, 5 P. 119; Southwestern R. R. Co. v. Mitchell, 80 Ga. 438, 5 S.E. 490; Holiday v. Sterling, 62 Mo. 321; McNamee v. Nesbitt, 24 Nev. 400, 56 P. 37; Durr v. Jackson, 59 Ala. 203; Collins v. Shannon, 67 Wis. 441, 30 N.W. 730; Parks v. Young, 75 Tex. 278, 12 S.W. 986; Toth v. Greisen (N. J.), 51 A. 927; 2 Greenleaf on Evidence, sec. 453; Martin v. Corscadden, 34 Mont. 308, 86 P. 33.)

"If the attachment is dissolved, this is conclusive of the right of the attachment defendant to recover actual damages, although the attachment was taken out without malice and under legal advice." (McDaniel v. Gardner, 34 La. Ann. 340; Kennedy v. Meacham, 18 F. 312, 322.)

MORGAN, J. Budge, C. J., and Rice, J., concur.

OPINION

MORGAN, J.

The respondents instituted this action against the appellant to recover damages for an attachment alleged to have been procured to be levied against their property wrongfully, maliciously and without probable cause. The attachment issued on July 28, 1911, and was dissolved on January 13, 1913. The suit in which the attachment was procured was decided in favor of respondents and against appellant. The property alleged to have been attached consisted of moneys, corporate stock, notes, real estate and a motorcycle. Respondents claim damages on account of being deprived of the use of the property and on account of loss of credit and profits in their business as building contractors. The case was tried to a jury, which returned a verdict in respondent's favor in the sum of $ 1,000. Judgment was entered accordingly, from which this appeal was prosecuted.

Appellant contends that the evidence fails to show that the property was attached. This contention is sustained so far as it concerns the real estate and the motorcycle. The return of the sheriff was offered in evidence by respondents to show that property was attached, but such return is only prima facie evidence of the truth of the matters therein stated. (Sec. 2026, Rev. Codes.) According to the testimony of respondents, the sheriff went to their office and informed them that the motorcycle was attached, but left it with them upon promise that they would not use it. The sheriff testified that although he was about to attach the motorcycle, he decided. at the request of respondents and with the consent of the attorney for appellant, to not do so. Without discussing the conflict of evidence in this particular, we hold that, assuming respondents' testimony to be the truth in the matter, the sheriff did not levy upon the motorcycle in accordance with sec. 4307, Rev. Codes (amended, Sess. Laws 1911, chap. 162, p. 559), because he did not, at any time, take it into his custody or remove it from the custody of respondents. There is no levy under a writ of attachment unless the acts required by the statute are substantially performed. (First Nat. Bank v Sonnelitner, 6 Idaho 21, 51 P. 993.) The uncontradicted testimony of the county recorder established the fact that no copy of the writ of attachment, or description of the real property alleged to have been attached, or notice of the attachment was ever filed in his...