
    F. J. WAGNER, Appellant, v. Iyone SMITH, Appellee.
    Ne. 4946.
    District Court of Appeal of Florida. Second District.
    March 12, 1965.
    Rehearing Denied May 6, 1965.
    Philip G. Nourse, Ft. Pierce, for appellant.
    Sam E. Murrell, of Sam E. Murrell & Sons, Orlando, for. appellee.
   ANDREWS, Judge.

The defendant, F. J. Wagner, appeals a final judgment after a jury verdict of $5,000 in favor of the plaintiff, lyone Smith, in a civil action for malicious prosecution.

The plaintiff alleged that the defendant had filed a suit against her claiming that she owed him the sum of $721.00, the amount of the approximate value of a watch allegedly purchased by the defendant for the plaintiff at an auction attended by the parties. The relationship of the parties shortly thereafter terminated, and the defendant requested the return of the watch.

The plaintiff refused to return the watch, and the defendant brought suit for the $721.00 and in conjunction therewith sued out a writ of attachment. The writ was traversed, and a trial was held upon the traverse with the jury finding that the defendant had probable cause. In the trial of the main case in which the writ had been issued, the jury rendered a verdict in favor of the plaintiff. The defendant contended that there was a debt due, that he had reason to believe that attachment was necessary to protect his interest, that he relied upon the advice of counsel in bringing the attachment proceeding’s. The plaintiff contended that the watch was a gift, and that the actions of the defendant in bringing the suit against her constituted malicious prosecution.

What facts and circumstances amount to probable cause is a question of law. There must have been an indebtedness and grounds for attachment. The absence of either is, therefore, absence of probable cause. Rice v. Day, 1892, 34 Neb. 100, 51 N.W. 464. Whether or not controverted facts and circumstances actually exist in a particular situation is a question of fact for the jury. Glass v. Parrish, Fla.1951, 51 So.2d 717.

The court properly submitted the cause to the jury, and its verdict should be affirmed. To do otherwise would place this .court in the position of substituting its judgment for that of the jury. Glass v. Parrish, supra.

Accordingly, the cause is affirmed.

SMITH, C. J., and ALLEN, J., concur.  