Wiley v. Traiwick

• Decision Date: 01 January 1855
• Citation: 14 Tex. 662
• Parties: L. M. WILEY AND OTHERS v. N. TRAIWICK AND ANOTHER.
• Court: Texas Supreme Court

14 Tex. 662

L. M. WILEY AND OTHERS

v.N. TRAIWICK AND ANOTHER.

Supreme Court of Texas.

1855.

A plea that the plaintiffs wrongfully, maliciously, oppressively, and without any just or probable cause, sued out an attachment on the same cause of action now sued on, and caused the goods of the defendant of the value, &c., to be seized and kept to the present time, by means whereof they were wholly lost to the defendants--the plaintiffs abandoning and dismissing their former suit and attachment before the defendant could plead to the same--is a good plea in reconvention, notwithstanding that the former suit and attachment took place in another State.

An action for wrongfully suing out an attachment in one State may be maintained in another; whether wrongfully or not, must be tested by the laws of the State where the attachment is obtained; but, although valid in form under the laws, the question still remains whether or not the plaintiff has perverted the forms of the law to the injury of the defendant. (Note 95.)

The provision of the attachment law of Louisiana, which authorizes an attachment where the debtor is about to remove his property out of the State, seems not to apply where the creditor resides in New York and the defendant in Texas, and the goods are in transitu through the State of Louisiana.

This case seems to imply that although all the facts may exist to authorize an attachment, yet that the attachment may in fact be maliciously sued out, for which an action will lie. (Note 96.)

Error from Cass. The transcript of the proceedings in the suit in Louisiana, which was made a part of the defendants' plea in reconvention, disclosed the following facts: Petition filed July 17, 1852, by the plaintiffs against the defendants, founded on two promissory notes, one for $3,448.15, due June 21, 1852, and the other for $4,661.76, dated February 19, 1852, and due at twelve months; allegation that the plaintiffs resided in New York and the defendants in Texas; affidavit of the indebtedness that the defendants reside out of the State of Louisiana, and that they are about to remove their property out of the State of Louisiana before the last-named debt becomes due, and that writs of attachment are necessary; bond in the sum of $15,000; writ of attachment levied on certain property as per inventory returned; citation to defendants served by posting a copy at court-house door and by delivering a copy to A. Slaughter, curator ad hoc of the defendants; August, 1852, default against Slaughter, curator; February 12, 1853, on motion of plaintiffs' counsel, suit dismissed at plaintiffs' costs and leave granted to withdraw the notes sued on.

There was a bill of exceptions to the exclusion of testimony, but no statement of facts. The only error assigned was the order of the court overruling the motion to strike out the defendants' plea of reconvention.

C. A. Frazer, for plaintiffs in error.

I. Did there exist at the time the attachment was sued out a legal ground to support it, and was it obtained in accordance with law? This question must be settled by the attachment laws of the State of Louisiana, where the remedy was resorted to; and if by those laws the remedy by attachment lay in favor of the plaintiffs against the defendants, under the circumstances then surrounding the debt and the parties there is an end of the whole question, and the judgment on the plea in reconvention should be reversed.

It is not pretended that the mere attempt to cover by legal sanction a wrong done in one State will protect the wrongdoer in a different State when proceeded against by the injured party. In other words, the action to recover damages for a tortious act is admitted to be transitory and follows the person of the wrongdoer; but an injury resulting from legal pursuit of a lawful remedy is not in any instance the foundation of an action, and is without remedy.

Now, under the facts stated in the plea, did the plaintiffs have a clear legal right to proceed against the defendants at the time and under the circumstances they did by attachment in Louisiana? And first, as to the debt then due.

It is alleged in the plea that one of the debts (over three thousand dollars) on which the attachment was founded was then due, and that the defendants were non-residents of that State, and that they were then about to remove their property out of the same. The law of Louisiana declared this sufficient cause of attachment. It is in these words: “A creditor may obtain such attachment of the property of his debtor in the following cases, * * * 2, when such debtor resides out of the State.” (Code of Practice, art. 240.) The defendants were surely within the rule of the code cited, and their property being in that State it gave the court jurisdiction to extend the remedy to the plaintiffs, who were also non-residents; for there, as well as elsewhere, creditors thus situated may become plaintiffs and proceed against their debtor, where either the presence of his person or property gives jurisdiction. This proposition is too clear to require authority; but see Tyson v. Lansing, 10 La. R., 447; Lowry v. Lansing, Id., 449.

But again, as to the debt not due when the attachment was sued out, there may be and would have been more plausibility in the plea if this debt had been the only foundation of the process. The right of the plaintiffs, however, under the law of Louisiana, in view of the facts alleged in the plea, to proceed by attachment on this debt, is as clear and absolute as their right in respect to the other debt.

Let it be here remarked that a full and complete transcript of the entire record of the attachment suit is made a part of the plea and filed as such.

It affirmatively appears from the plea that the defendants were at the time the attachment was obtained removing their property out of the State of Louisiana, and the law of that State has made this good ground of the attachment process to secure a debt not due. It is this: “And in cases where the debt or obligation is not yet due, it shall be lawful for any judge of competent jurisdiction to order a writ of attachment to issue whenever the said judge shall be; satisfied by the oath of the creditor or his agent of the existence of said debt and upon the said creditor or his agent taking oath to either of the requisites in number one, two, or three of article two hundred and forty and complying with article two hundred and forty-four, and moreover swearing that said debtor is about to remove his property out of the State before said debt becomes due,” &c. (Code of Practice, art. 242.)

The right of a creditor in that State to the attachment process to secure a debt not due is clearly and explicitly granted by the law cited. All that is required to lay the foundation for it is the fact that the debtor is about to remove his property out of the State, and this is admitted by the plea.

Again, the attachment was not only authorized by law, but it was obtained in strict accordance with its provisions.

The plaintiffs were required to give bond to the defendants, in an amount exceeding by one-half the amount of the debt sued for, before they were entitled to the writ.

An examination of the bond given in the attachment suit will show that it is in conformity to the law on the subject. Its condition is this: “The condition of this obligation is such that if the said L. M. Wiley & Co. shall well and truly pay all such damages as the said N. Traiwick & Co. may sustain in case it should be decided that the said writ of attachment was wrongfully obtained, then, in that case, the above obligation to be void, otherwise to be and remain in full force and virtue.”

It is to be observed that the law does not require a bond conditioned that the plaintiff will prosecute his attachment with effect. It is to be void if the attachment was not wrongfully obtained.

The affidavit on which the process was issued is in accordance with the law of Louisiana on the subject, and is a full compliance with it.

Now it is submitted that the plaintiffs, under the law of Louisiana, had a clear legal right to proceed by attachment against the defendants at the time and under the circumstances which they did, and that they pursued that remedy in strict conformity to the law; and the only remaining question, as it would seem, is whether the attachment was wrongfully sued out? What is the test of this question? It must necessarily be the existence or nonexistence of the facts upon which the law authorizes such attachments to be issued. It may be safely asserted that, on a comparison of the facts alleged in the plea with the law, it will be found that all the facts required by the law of Louisiana to support the attachment did exist, and that they are there virtually admitted to be true; and certain it is that not one of them is denied, and that nothing is alleged as a fact which in any degree pretends to assume that one of them is untrue.

Such being the state of the case, how can it be said the attachment was wrongfully sued out? Is it to be said that, in...