Overton v. Sigmon Furniture Mfg. Co.

• Court: Oklahoma Supreme Court
• Writing for the Court: THACKER, C. PER CURIAM. THACKER, C. PER CURIAM.
• Citation: Overton v. Sigmon Furniture Mfg. Co., 1915 OK 415, 151 P. 215, 50 Okla. 531 (Okla. 1915)
• Decision Date: 08 June 1915
• Docket Number: 4331.
• Parties: OVERTON v. SIGMON FURNITURE MFG. CO. ET AL.

151 P. 215

50 Okla. 531, 1915 OK 415

OVERTON v. SIGMON FURNITURE MFG. CO. ET AL.

No. 4331.

Supreme Court of Oklahoma

June 8, 1915

On Rehearing, August 3, 1915.

Syllabus by the Court.

An action at common law may be maintained for wrongful attachment against the plaintiff therein when the attachment is sued out maliciously and without probable cause, in which case, if the pleadings and evidence warrant it, both actual and punitive or exemplary damages may be recovered.

(a) In such case, by reason of section 4070, St. 1893 (section 4814 Rev. L. 1910), actual damages only may be recovered for the mere wrongfulness of the attachment and without regard to either malice or probable cause.

Actual damages only for mere wrongful attachment may be recovered in an action against the plaintiff therein independent of the undertaking required by section 4070, St. 1893 (section 4814 Rev. L. 1910), and without allegation or proof that the same was sued out maliciously or without probable cause.

In an action for wrongful attachment, an allegation that the attachment was abandoned and waived, and that the cause in which it had been sued out was fully disposed of before the filing of the petition in the instant case by a judgment for the debt sued for, sufficiently shows, as against a general demurrer, the dissolution of the attachment suit to warrant the instant action.

Where a pleading copied in a brief in this court is sufficient upon its face, as against a general demurrer, which demurrer was sustained by the trial court, it is not necessary, in order to have such erroneous decision reviewed in this court, under rule 25 (38 Okl. x, 137 P. xi), that exhibits, not required by statute to be attached to such pleading, should be copied into such brief.

(a) In reviewing such decision, it will be presumed, in the absence of anything appearing to the contrary, that such exhibits do not negative the allegations of such pleading.

The taking, by plaintiff, of a mere personal judgment for debt without reference therein to a prior ancillary attachment of defendant's personal property, does not impliedly negative either the dismissal, dissolution, or abandonment of such attachment.

As against a general demurrer, a petition in an action for wrongful attachment sufficiently describes the attached property by alleging that plaintiff was "engaged in business of undertaking and selling furniture at retail in the city of Duncan" and that his "stock of merchandise in the city of Duncan" was taken in such attachment.

Commissioners' Opinion, Division No. 1. Error from District Court, Stephens County; Frank M. Bailey, Judge.

Action by H. L. Overton against the Sigmon Furniture Manufacturing Company and another. There was a judgment for defendants, and plaintiff brings error. Reversed and remanded.

Wilkinson & Morris, of Duncan, for plaintiff in error.

Barefoot & Carmichael, of Chickasha, for defendants in error.

THACKER C.

Plaintiff sues the defendant company in the instant case for the latter's alleged wrongful attachment of the former's property in a prior action by it against the former for debt in the county court of Stephens county; and the petition in the instant case, in so far as pertinent to the questions before us for review, alleges that the said attachment was wrongful and unlawful, based upon a false affidavit of grounds therefor, which was made with the intention of damaging the good name and credit of this plaintiff, who was then engaged in business as an undertaker and retail dealer in furniture in said county, that the same was wrongfully and unlawfully levied upon this plaintiff's stock of merchandise, and "that said attachment suit * * * was abandoned * * * and said cause was fully disposed of * * * before the filing of this suit by * * * the plaintiff" (said defendant in the instant case) "by taking judgment for the sum sued for in that case, thereby waiving the attachment part of the suit in that court." The defendant W. M. Cates, who is also sued with the defendant company, was the sheriff through whom the process in the attachment case was executed.

A general demurrer was sustained to plaintiff's petition in the instant case, and the only question before us is as to whether the petition states any cause of action as against the same.

It appears that the custom of London became incorporated in the common law so that, in the absence of statutes, it may be that courts would nevertheless have the power to issue writs of attachment (2 R. C. L., Attachment, §§ 2, 3, pp. 801 802); but it appears that such power was not generally recognized in the United States, so that the attachment remedy is generally and must be regarded for all practical purposes as originating in and dependent upon statutory enactments (see Id.); and, in this jurisdiction at least, our statutes alone give a plaintiff such remedy.

It is true, however, as in other cases of malicious prosecution, that an action at common law may be maintained for wrongful attachment when the writ is sued out maliciously and without probable cause, in which case, if the pleadings and evidence warrant it, both actual and punitive or exemplary damages may be recovered. 2 R. C. L., Attachment, §§ 112, 123, pp. 897, 898, 911, 912; Drake on Attachment (7th Ed.) §§ 114, 745; 1 Shinn on Attachment and Garnishment, § 182, pp. 305-308, and section 377, p. 692; Floyd v. Anderson, 36 Okl. 308, 128 P. 249, 43 L. R. A. (N. S.) 788, Ann. Cas. 1915A, 348; International Harvester Company of America v. Iowa Hardware Company et al., 146 Iowa, 172, 122 N.W. 951, 29 L. R. A. (N. S.) 272; Ailstock v. Moore Lime Co., 104 Va. 565, 52 S.E. 213, 2 L. R. A. (N. S.) 1100, 113 Am. St. Rep. 1060, 7 Ann. Cas. 545; Ames v. Chirurg, 152 Iowa, 278, 132 N.W. 427, 38 L. R. A. (N. S.) 120. It is also true that in an action upon the undertaking which the plaintiff in attachment is required to give by section 4070, Stat. 1893 (section 4814, Rev. L. 1910), actual damages only can be recovered. Floyd v. Anderson, supra. And that the action at common law for both actual and exemplary damages is an action ex delicto, entirely distinct from the action ex contractu upon the statutory undertaking. See authorities above cited.

But, in respect to the recovery of actual damages in any form of action therefor, we think the effect of our statutes is to so modify the common law as to give a right of action for merely wrongful attachment and dispense with the necessity for the allegation and proof of malice and want of probable cause, it being sufficient to show that the attachment was wrongful. 3 Am. & Eng. Enc. L. 245, 246; McLaughlin v. Davis, 14 Kan. (168) 135; Connelly et al. v. Woods, 31 Kan. 359, 2 P. 773.

The section of our statute above cited reads:

"The order of attachment shall not be issued by the clerk until an undertaking on the part of the plaintiff has been executed by one or more sufficient sureties, approved by the clerk and filed in his office, in a sum not less than double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay to the defendant all damages that he may sustain by reason of the attachment, including reasonable attorneys' fees, if the order be wrongfully obtained; but no undertaking shall be required where the party or parties defendant are all nonresidents of the state, or a foreign corporation."

This statute does not require plaintiff to execute an undertaking, but requires that one be executed in his behalf "by one or more sufficient sureties" who are thereby bound for the payment of "all damages" sustained "if the order be wrongfully obtained"; and, as a legislative intent to bind the sureties for damages beyond those for which the plaintiff is bound is too unreasonable to be admitted, the implication is plain and apparently necessary that the attachment plaintiff is bound independently of the "undertaking" contract and as matter of law, for such damages.

If the mere wrongfulness of the attachment was not a ground for the recovery of actual damages, independent of the undertaking required by the statute, it anomalously would follow that, while a resident defendant could recover actual damages resulting from a mere wrongful attachment, a nonresident defendant or a foreign corporation could not recover any damages whatever unless the writ was not only wrongful but was also maliciously and without probable cause sued out.

Section 2718, Stat. 1890 (section 2948, Rev. L. 1910), requires that we liberally construe the above-quoted section of our statutes with a view to effect its object and promote justice; and, when so construed, we think the implication that the attachment plaintiff is liable for a merely wrongful...