
    Francis Fortman v. William Rottier and Edward Hoenig.
    An action may be maintained for maliciously, and without probable cause, procuring by affidavit and employing the statutory aid of an attachment as auxiliary to a civil action.
    Where the trial and judgment in such former suit does not necessarily involve the question of the existence of probable cause for issuing the attachment, it is not necessary that the plaintiff should aver or prove the termination of such former suit.
    Neither in such case is it necessary to aver in the petition, or prove upon the trial, that the attachment complained of had been discharged or otherwise terminated adversely to the claim of the party employing its aid, before suit brought.
    In Error to the Superior Court of Cincinnati.
    This was an action brought by Rottier and Hoenig, the plaintiffs below, against Francis Fortman, the defendant below, to recover damages for his having, as they allege in their petition, falsely, maliciously, and without any reasonable or probable cause, made an affidavit that they, the plaintiffs below, were about to convert their property, or a part thereof, into money, for the purpose of placing it beyond the reach of their creditors; and for having falsely, maliciously, and without any probable cause, thereupon caused and procured an order of attachment to be issued, by a justice of the peace, against their property and effects; by means whereof their business was broken up, and destroyed," etc. The original petition contained no averment that the proceeding complained of as wrongful, had terminated in favor of the plaintiffs; but was subsequently amended, by alleging further, “ that upon the return day to said attachment issued by said justice, they moved 'to dismiss said attachment, on the ground that the affidavit, upon which the attachment issued, was false. And plaintiffs offered to prove its falsity, but the said justice refused to entertain said motion, ruling that justices of the peace had no jurisdiction to dismiss or discharge an attachment, because of the falsity of the affidavit.”
    Issue was taken upon this amended petition, and, upon the trial, the court was asked, by defendant Eortman, to charge the jury “ that unless they found that the suit before the justice, in which the attachment complained of as wrongful, was issued, had terminated in favor of the plaintiffs, before they brought their suit, or that the order of attachment had been vacated or discharged, the plaintiffs had no right to recover.” This instruction the court declined to give; and the jury having found' for the plaintiffs, a motion for a new trial, based on this supposed error of the court, in refusing to charge as requested, was overruled, and judgment was entered on the verdict; to all which the defendant excepted. The petition alleges, and the testimony set out in the bill of exceptions shows, that Eortman recovered a judgment in the suit before the justice; and that the property attached was sold by virtue of an execution upon the judgment in the case, and the judgment was thus satisfied in full, before Rottier and Hoenig brought their action.
    The defendant below seeks to reverse the judgment of the superior court, for supposed error in refusing to charge that there could be no recovery by the plaintiffs, unless they showed a previous termination of the alleged wrongful proceeding, in their favor.
    
      Stallo, Andrews McCook,
    (with whom was J. H. Clemmer,) for plaintiff in error, cited from 1 Am. Lead. Cas. 227, where a large number of authorities upon this question are collected.
    
      W. M. Dickson, for defendants in error.
   Scott, J.

Where an action is brought to recover damages for maliciously, and without probable, cause, procuring by affidavit, and employing the statutory aid of an attachment, in a civil action, is it essential to the plaintiff’s right of recovery that he should aver in his pleading, and prove upon the trial, that such attachment had, before suit brought, been discharged, or otherwise judicially determined, adversely to the claim of the party charged with having wrongfully invoked its aid? This is the question presented by the record in this case.

In an action for a malicious prosecution, which, strictly speaking, is only where the prosecution complained of was upon a criminal charge, it is well settled that the prosecution must be shown to be at an end; and it must also appear that the plaintiff’ was acquitted of the charge. And the general rule is the same, where a groundless and malicious civil suit constitutes the cause of actidn.

But the reason of this rule can only apply to suits in which the prosecutor or plaintiff,'in the suit complained of, tenders an issue to the defendant, involving an inquiry into the existence of probable cause. "Where the defendant has his day in court upon the trial of this issue, it is but reasonable to require that he shall, by the result of the trial, show the criminal charge to be unsustained by proof, or the alleged cause of action to be invalid, before he shall be permitted to claim, in another suit, that either was malicious and without probable cause. Were the rule otherwise, a recovery might be had for a malicious prosecution, and the plaintiff still be convicted, or have judgment against him, in the former suit.

But the defendants in error did not bring their action to recover for a malicious prosecution, strictly speaking; nor for the malicious and groundless instituting and prosecuting of a civil suit. They admit that they were indebted to Eortman. But they complain, that for purposes of mere oppression, he wantonly, maliciously, and without probable cause, by his own false affidavit, of an ex parte character, procured an attachment to be issued, under the statute, as auxiliary to his suit. That such a wrong will constitute a valid cause of action, would seem reasonable, and was expressly held in the case of Tomlinson and Sperry v. Warner, 9 Ohio Rep. 103.

Eortman could not, under the statute, have procured the auxiliary process of attachment, without first showing, by affidavit, not only the nature, justice and amount of his claim, but also the existence of some one or more of nine specified particulars. (Swan’s Stat. 505.) This he did, by affirming that the defendants were about to convert their property, or a part thereof, into money, for the purpose of placing it beyond the reach of their creditors. Now, if the affidavit was false in this particular, and if Eortman had no good reason to believe it true, there would he a clear absence of probable cause. But the subsequent proceedings in the cause would not, necessarily, involve an inquiry into the truth or falsity of this part of the affidavit; nor would the final judgment at all determine this question. The existence of the debt, which is all that the judgment ascertains, does not, of itself, constitute probable cause for the attachment. 9 Ohio Rep. 103.

The general principle seems to be, that when the termination of the former suit can neither tend to establish nor invalidate the plaintiff’s cause of action, it is not necessary to aver such termination. Accordingly, it was held, in Grainger v. Hill, 33 E. C. L. Rep. 328, where the plaintiff complained of an abuse of the process of law, for the purpose of extorting property, to which the defendants had no claim, that the abuse having been perpetrated, and the defendants having attained their end by it, it was immaterial whether their suit was terminated or not.

But, it is said that the attachment which is complained of, must have been discharged, or otherwise terminated, in favor of the plaintiffs, before they can maintain their action. We are inclined to think that this is not necessary. The ancillary process of attachment is obtained on an ex parte affidavit, in the absence of the party against whose property it is issued. He has no opportunity to defend against the issuing of it. And the existence of probable cause for its issuing, is not required to be shown in any part of the subsequent proceedings. It is true that the defendants in that action might have moved for a discharge of the attachment, and thus have had the truth of the alleged grounds upon which it was issued, inquired into by the court. But were they bound to submit this question to the justice for review ? He had already passed upon it, in their absence; and much of the injury of which they complain had been already done them. When the question of fact, whether this had been done without probable cause, was to be inquired into, upon their motion, had they no right to a choice of forum? or to a trial by jury ?

As an item of evidence, tending to show the existence of probable cause, we suppose it would have been competent to prove, on the trial of this action, that no effort was made by the plaintiff to procure the discharge of the attachment. Such fact, if unexplained, would tend strongly to show acquiescence, and might be regai’ded as an admission of the existence of probable cause. But its conclusive character is a different question.

The plaintiff in error could have dismissed his attachment at his own pleasure; and as a recovery could be had against him in this suit only upon proof that he resorted to this kind of process maliciously, from a wanton intention to injure his debtors, in their character or property, we think he has little right to complain that they did not interfere actively, to have him legally restrained from farther persistence in wrong-doing.

The general rule which we have here recognized, was established in reference to cases where the judicial determination of the former suit, if adverse to the plaintiff, Would conclusively show the existence of probable cause, and where the plaintiff in fact had or would have his day in court upon that question.

• The • numerous authorities referred to by counsel for plaintiff in error, show its application in such cases only. -Where the reason of the rule ceases, the rule itself is not to be applied. And we cannot think it applicable to an action brought for the malicious use, or rather abuse, of the process of attachment allowed by our present statute. Such would seem to be the analogies of the law, and the conclusions of principle. See Bump v. Betts, 19 "Wend. 421, where it was held that the rule does not apply where the malicious prosecution complained of, arises out of proceedings on attachment in the absence of the party defendant, in which no opportunity is afforded him to defend the suit.

The interests of a party may imperatively require that his property shall be released from a wrongful attachment, without delay. May he not, in such a case, promptly procure the discharge of the attachment, by payment of the claim on which it is founded, or by executing an undertaking according to statute, and thus arrest the threatened ruin, without abandoning his right to redress for the injury already done him ? The proceedings in attachment would thus be terminated, but not adversely to the claim of the party who sued out the process. Nor would such a termination conclusively show that the process was rightfully sued out.

Ve see no good reason for holding that, as a condition precedent to redress, the injured party must have an inquiry instituted into the merits of the attachment, and a decision in his favor by the justice of the peace, or perhaps by an appellate court, and in the meantime permit the consequences of the wrong to run their full course.

Judgment of superior court affirmed.

Swan, C. J., and Brinkerhoff, and Peck, JJ., concurred.

Sutliff, J.,

dissenting:

The original petition contains the averment “that upon the return day to .said attachment, issued by said justice, they moved to dismiss said attachment on the ground that the affidavit upon which the attachment issued was false; and plaintiff offered to prove its falsity, but the justice refused to entertain said motion, ruling that justices of the peace had no jurisdiction to dismiss or discharge an attachment because of the falsity of the affidavit.”

It appears, therefore, by the record before us, that the plaintiffs were in court, and made an effort to get the attachment set aside, and failed. It may be conceded, for the purpose of fairly stating the question before us, that the justice erred in refusing to receive the proof offered, and in refusing to dismiss the attachment. Still, it must be admitted, that the plaintiffs below not only had an opportunity to come into court and procure the attachment to be dissolved, if improperly allowed, but they actually had their day in court, in that regard, and failed to procure the attachment to be dissolved; but judgment was rendered, and final order made in the case against the plaintiffs. Under these circumstances, it seems to me clear, that they were precluded in law from maintaining their action against the defendant for having wrongfully sued out the attachment.

I cannot perceive a want of analogy between the causes of action for maliciously commencing the suit without cause against a defendant, and for that of maliciously suing out an attachment against a defendant without cause. It is true, in this case, the plaintiffs admit a just cause for commencing the suit, and only deny that there was cause for suing out the attachment. But suppose the suit had been for both causes of action, that of commencing the suit without cause, and also that of suing out the attachment without cause. In such a case, we all agree, that by the plaintiffs appearing in court and suffering judgment to be entered against them in the proceeding, even if they had suffered such judgment by default, or had not come into court at all, having an opportunity to do so, they would very properly be precluded in law from maintaining their action for the alleged wrong of instituting the suit against them without cause. Suppose, further, that in the civil suit the plaintiffs below had offered to prove to the court that the cause of action alleged against them was utterly groundless and fraudulent, and also had offered the same proof to dissolve the attachment upon the same motion, and suppose the justice to have refused to admit the proof of plaintiffs, either against the right of action or the right of attachment; it seems to me that in such a case there is no reason for holding the plaintiffs precluded in their right of action for instituting the suit against them, which does not equally obtain to preclude their right of action for suing out the attachment against them. If the suit were destitute of merits the defendants might appear and defeat the same. If the attachment was improperly sued out, they had the same right to appear and defeat the same, and procure its dismissal. But it is said they were not bound to move for the dismissal of the attachment. Nor were they bound to defend the suit commenced without cause and maliciously against them. The plaintiffs below might have been seriously injured by the commencement of a suit in the case supposed; perhaps as seriously injured as they could have been by an attachment being sued out. Suppose a case where a merchant, with a limited credit, and indispensably necessary to be preserved for his success in business, were sued for a large pretended debt for the purpose of destroying his credit. The very commencement of the suit might have ruined him in his business; yet we all agree no action could be maintained for the wrong unless the injured party could aver and show that such suit was terminated without a recovery. And I confess I can see no reason for not applying the same rule to cases of attachment. Wherever the party had an opportunity of defending against the alleged wrongful proceeding against him, I hold the law to be that he must aver and show the dismissal or termination of such legal proceedings, in his favor, as indispensably necessary to entitle Mm to a recovery for such alleged wrongful proceedings against him.

Thus in the case of Whitworth v. Hall, 2 Barn. & Adolph. 680, it was held that in an action for maliciously suing out a commission of bankrupt it must be averred and proved, that the commission was superseded before the commencement of the action; and that if the fact be not proved, the plaintiff ought to be non-suited, though it was not averred in the declaration, although the declaration for such omission might have been demurred to. Lord Tenterden said in that case, in delivering the opinion: “If a commission of bankrupt be sued out without reasonable or probable cause, we must assume that the Lord Chancellor would supersede it. There is no sound distinction as to the point raised in this case between a malicious prosecution by indictment or a malicious arrest, and a suing out of a commission of bankrupt.” In the same case, Littledale, L, said: “ There is no distinction between an action for a malicious prosecution by indictment, or for a malicious arrest, and one for maliciously suing out a commission of bankrupt. In all of them it is necessary to show that the original proceeding, which formed the alleged ground of the action, is at an end.” Parke, J., used the following language: “It seems to be involved in the proposition that the commission was sued out without reasonable and probable cause, that such commission must be superseded before the action be commenced, for the very existence of the commission would be some evidence of probable cause.” So, too, in the case of Matthews v. Dickinson, 7 Taunt. 399, which was also an action for maliciously suing out a commission of bankrupt. Gibbs, C. J., in pronouncing the opinion of the court, used the following language: “ This was an action for maliciously suing out a commission of bankrupt. Unless it was superseded, the action could not be supported,” etc.

The statute of Geo. IV, c. 16, sec. 13, under which the commission of bankrupt, mentioned in the case of Whit- worth v. Hall, was sued out, provided, as did the former statute, that if after such commission had been taken out, the petitioning' creditor failed to prove the truth of his alleged debts, and that the party had committed an ac.t of bankruptcy, at the time of the issuing of the commission, and that the commission was taken out fraudulently, upon petition of the party against whom the commission was sued out, the Lord Chancellor should examine into the same, and might order satisfaction to the party against whom' the commission had been so wrongfully sued out; and, to enable him to recover such satisfaction, might assign to him the bond given in the proceeding by the party suing out the commission. And such assignment of the bond by the Lord Chancellor was not only evidence of the commission being superseded, but that the commission had been fraudulently sued out. Smith v. Broomhead, 7 Term. 504; Ex parte Gayter, 1 Atk. 144.

It seems to me, therefore, there is an analogy between these cases and the one at bar. In the case of a commission of bankrupt being wrongfully sued out, if the party so suing it out failed to prove his debt and the act of bankruptcy, the Lord Chancellor would order the commission superseded, just as the court, in case of the party commencing a suit here in attachment, on failure of plaintiff, on trial, to prove his cause of action, would order the attachment dismissed. In like manner the person against whom the commission was wrongfully sued out, might himself, during the pendency of the proceedings, apply to the Lord Chancellor, and, upon showing proper cause, procure the commission to be superseded; just as the party, in this state, against whom an attachment has been wrongfully sued out, has the right to apply to the court, and, upon showing cause, procure the dismissal of the attachment. Secs. 228 and 229 of the code. Nor can I perceive why it is not equally involved in the proposition, that the order of attachment was sued out without any cause, that the same should have been dismissed, as in the cases referred to, that the commission of bankrupt should have been superseded. The contrary doctrine would present this apparent absurdity: The party recovering for an order of attachment sued out without any cause, on farol proof, while the record to which he was party showed the continuance, in full force, of the judgment of the court in making the order, that there was sufficient cause for the order and the final order of sale, such order of attachment importing absolute verity, the same as a judgment.

I think the rule expressed in this case by the majority of the court, not only objectionable, as irreconcilable with authorities, but also as affording a prolific source of litigation, tending, necessarily, in a great measure, to defeat the object, and pervert the benefits of the attachment laws of this state.

Eor the reasons stated, I am unable to concur with my brethren in their opinion pronounced in this case.  