Slaughter v. Nolan

• Citation: 41 S.D. 134,169 N.W. 232
• Decision Date: 04 November 1918
• Docket Number: 4320
• Parties: CHESTER SLAUGHTER, Plaintiff and Respondent, v. M. K. NOLAN and E. A. Dwyer, Defendants and appellants.
• Court: Supreme Court of South Dakota

41 S.D. 134

169 N.W. 232

CHESTER SLAUGHTER, Plaintiff and Respondent,

v.

M. K. NOLAN and E. A. Dwyer, Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, Tripp County, SD Hon. William Williamson, Judge #4320--Reversed E. O. Patterson, O. D. Olmstead Attorneys for Appellants. R. H. Molitor, W. J. Hooper Attorneys for Respondent. Opinion filed Nov. 4, 1918

WHITING, P. J.

Plaintiff brought this action to recover damages which he alleged he had suffered because of an attachment which defendant had caused to be levied on his property, he alleging such attachment to have been wrongful. This is not an action upon the attachment bond; neither is it an action based upon the issuance of an irregular or void process. Verdict and judgment were for plaintiff. From such judgment and an order denying a new trial, this appeal was taken.

We deem it necessary to consider but one question: Will this action lie without allegation or proof of malice and want of probable cause? This question was raised by objection to introduction of evidence, by motion to direct verdict, and by exceptions to instructions given.

Respondent contends that, while the complaint is not a model in not specially and directly alleging malice and want of probable cause, yet, as against the objection to receipt of evidence, the complaint was sufficient to support proof of malice and want of probable cause. Conceding this to be true, it would not excuse such proof.

Respondent contends there was ample evidence establishing malice and want of probable cause. We think not, but, even if there were, and therefore the trial court did not err in refusing to direct a verdict, yet whether there was sufficient evidence to prove malice and want of probable cause was a question that should have been left for the decision of the jury, unless respondent's further contention is sound—an action, not upon the attachment bond will lie for a wrongful attachment even though there was probable cause 'for the attachment or even though the attachment creditor was not actuated by malice in causing the attachment.

It must be conceded that there are courts which hold that such an action will lie, but it seems clear to us that such holdings, except as they rest upon some statute, are not supported by reason and they clearly are not by the decisions of the great majority of the courts. It is a well-established rule of law that:

"The mere fact that one person institutes a civil action against another does not give rise at common law to a cause of action in favor of the person sued. Whatever the injury resulting from the issuance of the judicial process the person procuring its issuance incurs no responsibility, provided he acts upon an honest conviction that the remedy is necessary to the enforcement of a legal right."

The gist of the action for malicious prosecution is the malice and want of probable cause. If it were not for these and both of these, a case even of wrongful criminal prosecution, no matter what damages it brought the party prosecuted, would present but a case of damnum absque injuria—damages without any violation of legal rights. It will certainly be an evil day when any person, who, honestly supposing himself, under the facts as he understands them, to be entitled to a remedy provided by law, shall, though acting in good faith in pursuing such remedy, lay himself open to a liability other than that which express statute may impose upon him as the price of availing himself of such remedy. As said in McFadden v. Whitney, 31 N. J. Law, 391, 18 Atl. 62:

"It may be affirmed that no well-considered case can be found in which an action of tort has been successfully maintained against a creditor for prosecuting a suit against his debtor, in which he strictly pursued all the forms and requirements of law, unless it appeared that he was actuated by malice. ... The policy of the law has always been to guaranty immunity to suitors who, in good faith, adopt and pursue the due forms of the law, although they may ultimately fail to establish their claims."

Statutes have enlarged upon the common-law remedies, but, while granting certain new and in some cases extraordinary remedies, have coupled with the right to use some of them the obligation to give a bond to protect the other person from damages growing out of the wrongful use of such remedy; but the mere fact that the statute requires a bond as a condition to the seeking of a certain remedy creates no liability independent of the bond. This court has held that a statute requiring one engaging in a certain business to give an undertaking indemnifying certain parties from damages growing out of the pursuit of such business does not warrant any action to recover such damages, except an action on the bond. Paulson v. Langness, 93 N.W. 655; Remedy v. Garrigan, 121 N.W. 783, 21 Ann. Cas. 392. And yet it is because of a statute requiring a bond that the court in Overton v. Sigmore F. Mfg. Co., 50 Okl. 531, 151 Pac. 215, held that there could be an action not on the bond.

Different reasons have been advanced for holding that one can recover damages for a merely wrongful attachment, without suing on the bond. No court sustains such a suit except there exists in such jurisdiction a statute requiring a bond. In Tallbot v. Great Western Plaster Co., 151 Mo. App. 538, the court base their holding upon the proposition that, attachment being an extraordinary remedy, the same rule should not apply as to an ordinary...