
    JOHN B. DAY, as Assignee, &c., Respondent, v. ELIAS BACH, et al., Appellants.
    
      Conversion—when will liefor taking of goods under process. —Attachment.
    
    Where an attachment regularly granted upon competent evidence is vacated upon appeal, for error alone, and not upon the ground of irregularity or for want of jurisdiction,'—in the absence of proof of malice upon the part of the party obtaining the process, action will not lie against him for conversion of the goods taken thereunder.
    Cases in which the process was void, or had been set aside for irregularity, distinguished.
    Before Sedgwick, Ch. J., and Russell, J.
    
      Decided December 6, 1880.
    Appeal from judgment in favor of plaintiff, entered on verdict of a jury, and also from the order denying defendant’s motion for a new trial, made upon the minutes.
    The action was by the plaintiff, as general assignee of one Scheuer, for the benefit of the latter’s creditors.
    
      The complaint charged a wrongful taking and conversion, by defendant, of Scheuer’s goods.
    On the trial it appeared that the defendants had begun an action in the supreme court on an account stated, and that, in such action, they applied for and obtained an order of attachment. The affidavit on which this order was made justified an inference that Scheuer was about to dispose of his property with intent to defraud his creditors. There was no irregularity in the attachment, or in the proceedings to obtain it. Scheuer moved, at special term, upon additional affidavits, that contradicted essential parts of the affidavit on which the attachment was issued, and explained others, to set aside attachment, but not on any ground of irregularity. The motion was denied. On appeal this order of denial was reversed, and the attachment was vacated.
    The taking of the goods under the attachment was the wrongful conversion alleged in the complaint. The complaint did not charge that the defendants acted maliciously or without probable cause.
    The defendant’s counsel moved to dismiss the complaint on the ground that the evidence disclosed no cause of action.
    The motion was denied, and the judge left to the jury to find only the value of the goods taken. Exceptions were made to the denial of the motion, and to the charge that the only question was the value of the goods.
    
      Lawrence & Waehner, attorneys, and L. C. Waehner, of counsel, for appellants, urged:
    I. This action was not in the nature of a suit for a malicious prosecution. It is not charged that the defendants maliciously, and without probable cause, procured the warrant of attachment to be issued and levied. The ground upon which the plaintiff claims to recover is, that the warrant of attachment having been set aside upon the merits, for error in fact, affords no justification for the proceedings taken under it during its life.
    II. The appellants concede that had the attachment been vacated for want of jurisdiction in the court, or because of any irregularity in their proceedings, or because of their failure to present to- the court sufficient facts to justify the issuance of the warrant, in the first instance, they would be liable as trespassers for all acts done thereunder. But neither of those facts exist in this case.
    III. There is a vital difference between erroneous and irregular process. Erroneous process is the act of the court, and even after it is set aside or reversed, whatever was done under it while in force may be justified by the party. Irregular process is the act of the party, and when once set aside, is considered as having been a nullity from the beginning (Blanchard v. Goss, 2 N. H. 491; Palmer v. Foley, 71 N. Y. 109 ; Miller v. Adams, 52 Id. 415; Waldo v. Selden, 4 Week. Dig. 370; Simpson v. Hombeck, 3 Lans. 53 ; Sleight v. Ogle, 4 E. D. Smith, 445 ; Waldheim v. Sichel, 1 Hilt. 45 ; Coupal v. Ward, 106 Mass. 289; 3 Daly, 38; 1 Hill on Torts, 437, 443, 444). The process in this case, being erroneous and not irregular, afforded a complete protection for all acts done under it, and the court at'the trial should have so held. A party suing out process from a competent court is responsible only for its validity and for his own good' faith in causing it to issue (Adams v. Freeman, 9 Johns. 117).
    IV. It not being claimed that the defendants maliciously, and without probable cause, procured the attachment to issue, nor that any acts were done in excess of those authorized by the writ, the plaintiff cannot recover in this action. The presence or partici- , pation of the defendants in the levy does not render u them liable, the process being valid.
    V. It may perhaps be suggested that it is a great hardship to a party to have his property attached without a remedy for the damage which may be occasioned by the execution of the process, and that, if the plaintiff is nonsuited in this action, he is remediless. This suggestion is not, however, entitled to any consideration, as it has been completely answered by the court of appeals, in the case of Palmer v. Foley (71 N. Y. 108).
    
      Cooper & Bach, attorneys, and S. V. R. Cooper, of counsel, for respondent, among other things, urged :
    Defendants contend, First: That the facts show that the goods were taken under an attachment, and if there was a trespass or conversion it was by the sheriff. Second: That the warrant of attachment having been vacated for error and not for irregularity, it was a protection to these defendants for any act done by the sheriff under it. Neither of the above propositions is true. The sheriff was protected by the warrant of attachment, but the defendants were not (Wehle v. Butler, 12 Abb. Pr. N. S. 139 ; affi’d, 61 N. Y. 245 ; Lyon v. Tates, 52 Barb. 237; Kerr v. Mount, 28 N. Y. 659). The counsel for the defendants claimed, on the triál, that the attachment not having been set aside or vacated for irregularity, but for error, it is a protection to the defendants in this action against any act done by the sheriff under it; and then cites several cases. The case of Palmer v. Foley has no application to this action. In that action an injunction was granted; the action was discontinued by consent. An order was made appointing a referee to ascertain defendant’s damages by reason of the injunction. The court of appeals held, There is no breach of the condition of the statutory undertaking, unless the court finally decides that the plaintiff was not entitled to the injunction, or unless something occurs equivalent to such a decision. The point in this case did not arise in the case of Palmer v. Foley. And it does not appear, by the order of the general term vacating the attachment, whether it was vacated for error or for irregularity. The case of Miller v. Adams (52 N. Y. 409), is not in point. It was an action for false imprisonment. Adams had obtained a judgment against one Thompson, execution had been issued and Returned, no goods. The plaintiff, Miller, had been ordered to appear before a county judge to be examined as a debtor to Thompson, or as.having property belonging to him. Miller disregarded the order, and an attachment was issued against him, under which he was arrested. It was claimed by Miller that the county judge had no jurisdiction to issue the attachment, for the reason that the affidavit upon which the proceedings were instituted was insufficient. The court of appeals held the affidavit was sufficient, and that the county judge had jurisdiction. The case of Waldo v. Seldon (4 Weekly Dig. 370), was an action for false imprisonment, and arose out of proceedings supplementary to execution, and has no application to the present case. Simpson v. Hornbeck (3 Lans. 53), is also a case of false imprisonment, and has no application. The sheriff is protected by the warraút of attachment, and if the defendants are not liable, then it follows that there is no means or remedy by which property attached and converted can be regained, or the value thereof recovered, if attachment be vacated. Money collected on a judgment, which is afterwards reversed, either for error or irregularity, can be recovered back (Simpson v. Hornbeck, 3 Lans. 53, 56).
   By the Court.—Sedgwick, Ch. J.

The court issuing the attachment had jurisdiction for that purpose, and there was no irregularity in the proceeding. The affidavits on which the attachment was made disclosed evidence of a competent kind, establishing, in the absence of explanation, one of the cases in which the statute provides for an order of attachment. Malice was not alleged against the defendants, or charged against them on the trial.

Chitty says, of actions of this kind, that “ case for the malicious motive and want of probable canse for the proceeding is the only sustainable form of action” (1 Chitty Pl. 186).

Reynolds v. Kennedy (1 Wils. 232), was an action for damages, in causing the defendant’s property, some barrels of brandy, to be seized under the revenue law. In the first instance, the plaintiff’s information was sustained and the property condemned, but this was reversed on appeal. The court held that the action for damages would not lie, there being no charge or proof of malice. It was said the “gist of this sort of action arises from some evil practice or malice in him who sues or prosecutes” (Pangburn v. Bull, 1 W. 346; also cases cited in note a, § 11, c. 16, 1 Hill's Torts).

In Beaty v. Perkins (6 Wend. 381), it was held that trespass would not lie against a party who has procured a search warrant to search for stolen goods, if the warrant be duly issued and regularly executed, and it was thought that case would lie if the party has no grounds for his proceedings, and is actuated by malicious motives.

In 1 Saunders (230, b), the law is broadly stated: “And the rule seems general that no action lies for damage or inconvenience sustained in consequence of process of law, unless it be alleged and proved that the party who occasioned it was actuated by malice.”

In Simpson v. Hornbeck (3 Lans. 53), the defendant had obtained a judgment for the conversion, by the plaintiff, of personal property, and the plaintiff was taken by an execution against his person, issued on the judgment. The judgment was afterwards reversed, and the plaintiff brought the action for false imprisonment. Judge Pabkee, in giving the opinion of the general term, said, “ although a void judgment, or one that is voidable for irregularity, will not, after being set aside, justify the acts of the party, done under it, before it was set aside, this principle, I apprehend, has never been applied to a judgment .merely erroneous, and reversed for error by a court of :review.” He cites other cases.

In the cases cited by respondent’s counsel to maintain this action, Wehle v. Butler (61 N. Y. 245, affirming 35 Super. Ct. 1), Lyon v. Yates (52 Barb. 237), Kerr v. Mount (28 N. Y. 659); and in Smith v. Shaw (12 Johns. 257), Chapman v. Dyett (11 Wend. 31), the processes were either void or had been set aside for irregularity.

In substance, if a party were held liable for the cause here alleged, the liability would exist, although he was guilty of no omission or violation of duty to the law or to the individual. If there were damage, it would be damnum, absque injuria.

For these reasons, I am of the opinion that the defendant’s exceptions upon the trial, require a new trial.

Judgment and order appealed from reversed, and new trial ordered, with costs of appeal to appellant to abide event.

Russell, J., concurred.  