Crow v. Sims
Crow v. Sims
Opinion of the Court
The petition in this case avers that the plaintiff in error wrongfully caused an attachment against plaintiff’s wages to be issued out of a justice’s court on a claim for house rent. It does not aver that any bond in attachment was given or that it was a case in which a bond was required to be given before a writ of attachment could issue. There is no averment that the writ of attachment was actually levied on any property belonging to the plaintiff or that any garnishee process was issued or served in said case; nor is there any averment of malice and want of probable cause.
This petition does not state a cause of action either at common law or on the statutory bond.
The common pleas court erred in overruling the objection of plaintiff in error to the introduction
Judgment reversed and judgment for plaintiff in error.
Reference
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- Syllabus
- In action for malicious prosecution of attachment case—Malice and ■want of. probable cause—Must be alleged and proven—Action for damages maintainable on statutory bond, when—Section 10254, General Code, requiring bond—Does not affect common • • law right of-action, when. l! A suit for damages for causing an attachment to issue as auxiliary 'to a- civil action for debt is no exception to the general rule that in all actipns at common, law- for. malicious prosecution or for the abuse of the processes of the .court, malice and want of prob- ' able cause must be alleged and proven. 2. In such case, in the absence of malice and want of probable caús,e, no action- can be maintained except upon the statutory' bond, if any, given in the attachment proceeding. 3. The provision of Section 102S4, General Code, requiring the plaintiff to furnish a bond before a writ of attachment shall issue, conditioned that the plaintiff will pay defendant the damages he may sustain if the order therefor is wrongfully obtained, has no application to and does not affect the common law right of action, but merely furnishes an additional statutory protection to the defendant. -