
    [No. 12702.
    Department One.
    May 8, 1890.]
    G. BERSON, etc., Appellant, v. ROBERT EWING et al., Respondents.
    Malicious Prosecution of Civil Action — Attachment — Statute of Limitations. — The statute of limitations does not begin to run against a claim for damages for the malicious prosecution of a civil action upon an unfounded claim until the action is terminated, although an attachment may have issued in the action.
    Id. — Malicious Attachment — Running of Limitation. — It is only where an illegal and malicious attachment is the gist of the action that limitation runs from the date of its issuance and levy; and this rule does not apply where the gist of the action is the malicious prosecution of an unfounded claim in which, so far as the record is concerned, a writ of attachment might have properly issued.
    Partnership — Rights of Surviving Partner — Claim for Unliquidated Damages — Settlement of Partnership. — A surviving partner has power, under section 2461 of the Civil Code, to prosecute a claim for unliquidated damages in favor of the partnership; and under section 1585 of the same code, has power to settle the business of the partnership, which includes everything that may be necessary to wind up its affairs.
    Id.—Construction of Code—“Debts” and “Claims” — Damages.— Though the word “debt” does not, in its legal sense, like the word “ claim,” include a demand for damages arising from a tort, they are used synonymously in section 2461 of the Civil Code.
    Appeal from a judgment of the Superior Court of the city and county of San Francisco.
    The facts are stated in. the opinion.
    
      
      C. E. K. Royce, for Appellant.
    In case of an illegal or unauthorized attachment, or attachment of a stranger’s property, limitation runs from date of the levy. (McCusker v. Walker, 77 Cal. 208; Sharp v. Miller, 57 Cal. 431.) Suit for malicious prosecution of an action cannot be maintained until a determination of the former action in favor of the defendant. (1 Wade on Attachment, 502; Angell on Limitations, 298; Williams v. Hunter, 3 Hawks, 545; 14 Am. Dec. 600, and notes; Fortman v. Rottier, 8 Ohio St. 548; 72 Am. Dec. 606, and notes; Dreux v. Domec, 18 Cal. 83; Grant v. Moore, 29 Cal. 658; Kinsey v. Wallace, 36 Cal. 476; Hibbing v. Hyde, 50 Cal. 206.)
    
      E. F. Preston, and Lloyd & Wood, for Respondents.
    The action is barred by section 339 of the Code of Civil Procedure. (McCusker v. Walker, 77 Cal. 208; Sharp v. Miller, 57 Cal. 431.) The surviving partner cannot maintain the action. Section 2461 of the Civil Code furnishes the measure of his power. A distinction is drawn between “debts” and “claims.” (Lawrence v. Martin, 22 Cal. 174.)
   Gibson, C.

This is an action brought by plaintiff, as the surviving partner of the firm of A. Berson & Son, against all the defendants, except R. E. Corson, as partners under the firm name of Ewing, Plum & O’Brien, and said Corson, to recover damages for maliciously prosecuting another suit on a fraudulent claim, and obtaining a writ of attachment thereon, and causing the same to be levied upon the property of the firm of A. Berson & Son.

Two demurrers to plaintiff’s complaint were filed,—one by defendants Flood and Coleman, and the other by defendants Plum and Corson. Both were sustained, and judgment thereupon entered for defendants. From this judgment plaintiff appeals. The complaint is in substance as follows:—

The plaintiff and A. Berson were partners doing business in the city and county of San Francisco, under the firm name of A. Berson & Son, until December 24, 1883 (?), when the said A. Berson died. On or about the first day of June, 1885, the defendants, other than Corson, who were then and still are partners under the firm name of Ewing, Plum & O’Brien, maliciously, and for the purpose of injuring A. Berson & Son, pretended to have a claim against the latter for a large amount of money, though they, Ewing, Plum & O’Brien, well knew that such claim was fraudulent and did not in fact exist. And in order to carry out their malicious intention to injure and oppress A. Berson & Son, they, Ewing, Plum & O’Brien, on the date last mentioned, conspired with defendant Corson, whereby the latter took an assignment of the fraudulent claim, and brought suit thereon in his own name, as assignee, against A. Berson & Son, in the superior court of the city and county of San Francisco. In furtherance of his conspiracy with Ewing, Plum & O’Brien, and further intending to maliciously injure A. Berson & Son, he, Corson, on the date last referred to, without cause, sued out a writ of attachment in the action brought by him, and caused the same to be levied upon tbe merchandise of A. Berson & Son, consisting of carpets, upholstery, and furniture in their store in said city and county, and placed a sheriff’s keeper in charge of the same. Thereafter, and before the trial of said action, the plaintiff caused the court, by its order, to bring in Ewing, Plum & O’Brien as proper and necessary parties to.the action. On or about June 14, 1887, the said action was tried by the court without a jury, and resulted in a judgment on the said pretended claim in favor of plaintiff, and against Ewing, Plum & O’Brien and Corson, by which judgment the attachment was dissolved. The bringing of said action and levying the writ of attachment issued therein damaged A. Berson & Son in their business and credit, and caused them to sustain loss by the stoppage of goods in transitu from New York, and by being compelled to pay attorneys’ fees in obtaining a dissolution of the attachment, keepers’ fees, and costs of other attachments levied upon their merchandise.

The argument of the respondent in support of the ruling of the court below is, — 1. That the action is barred by the provisions of section 339 of the Code of Civil Procedure, because it appears from the face of the complaint that more than two years have elapsed between the date of the issuance of the writ of attachment and the commencement of this action; 2. That, under section 2461 of the Civil Code, the plaintiff has no capacity as a surviving partner to maintain this action.

The respondents’ counsel in their first point have evidently mistaken the scope of the complaint by confining it to the wrongful issuance and levy of the writ of attachment. The main cause of action is for the malicious prosecution of a civil action, and all the facts necessary to maintain it appear in the complaint, to wit, that defendants maliciously, and without probable cause, prosecuted an action- upon an unfounded claim against plaintiffs’ firm to their damage, and which action was determined in their favor. (Eastin v. Bank of Stockton, 66 Cal. 123; Kinsey v. Wallace, 36 Cal. 462.)

The writ of attachment was a mere incident of the action complained of, but the use made of it aggravated the damages which resulted from the prosecution of said action; and it is settled in this state, by Eastin v. Bank of Stockton, supra, that the prosecution, without probable cause, of an unfounded civil proceeding, in which a writ of attachment is not issued, is actionable on the part of any one injured by such a proceeding.

One of the essential facts to the maintenance of an action of the kind before us is, as above stated, that the malicious suit terminated in favor of the party against whom it was prosecuted. Were this not so, the plaintiff might recover for the malicious suit, and still have judgment rendered against him in such suit. Now, the malicious prosecution complained of in this case did not terminate in favor of plaintiffs’ firm until June 14,1887; and although the record here does not disclose when the original complaint in this case was filed, it does show that the amended complaint was filed November 8,1887, from which we must infer that the action was commenced on or prior to that date.

It is therefore clear that the period of two years prescribed in section 339, subdivision 1, of the Code of Civil Procedure, within which actions of this character may be brought, had not elapsed when the amended complaint was filed.

McCusker v. Walker, 77 Cal. 208, and Sharp v. Miller, 57 Cal. 431, relied upon by respondents’ counsel to show that the cause of action here is barred by the provision of the Code of Civil Procedure above mentioned, do not apply. In the first case, the levy of the attachment complained of was made in an action which was brought by a purchaser of realty at a foreclosure sale, against one of the parties to the foreclosure suit, to recover the value of the use and occupation of the realty during the period of redemption, i. e., from the date of the sale until he received his deed from the sheriff. He was entitled to the value of the use and occupation of the premises (Code Civ. Proc., sec. 707), but the writ of attachment which he caused to issue and be levied upon some personal property of McGusker was illegal, and it was held that, being illegal, the right of action for damages sustained thereby accrued when the writ was issued and levied, and that, more than two years having elapsed from that time before the action thereon was commenced, it was barred by section 339 of the Code of Civil Procedure.

The second case is in effect the same as the first, and is commented on in it.

It is to be observed that in each of those cases the gist of the action was the wrongful issuance and levy of a writ of attachment, while in the case here the gist of the action is the malicious prosecution of an unfounded action, in which, so far as the record is concerned, a writ of attachment might have properly issued.

Section 2461 of the Civil Code, relied upon by respondents’ counsel in their second point, reads as follows: “A partner authorized to act in liquidation may collect, compromise, or release any debts due to the partnership, pay or compromise any claims against it, and dispose of the partnership property.”

This they claim is the measure of the surviving partner’s power; under it he may collect debts only, but may release or compromise claims against the partnership. Now, while the word “debt,” in its legal sense, does not, like the word “ claim,” include a demand for damages arising from a tort, still we think they were used in the above section synonymously, and probably to avoid repetition, and that the term “debt” was intended to have an application as broad as that of the word “claim.” It would indeed be strange if a surviving partner could compromise any claim against the firm, but could neither compromise nor enforce one in favor of it. By section 1585 of the Code of Civil Procedure, a “ surviving partner has the right to continue in possession of the partnership and to settle its business .... without delay.” The power to settle gives full authority to the surviving partner to do everything that may be necessary to wind up the affairs of the partnership, but he can do nothing which is not indispensable to this end. (Parsons on Partnership, 388.)

The case of Lawrence v. Martin, 22 Cal. 174, cited by respondents, simply goes to the point that the claim, being one arising out of a tort, is unassignable. It by no means sustains the proposition that a surviving partner cannot maintain an action on such a claim for damages sustained by the partnership estate.

It therefore follows that the court erred in sustaining the demurrers to the complaint; and we advise that the judgment be reversed, and the cause remanded, with directions to the court below to overrule the demurrers, and grant defendants leave to answer within the usual time.

Foote, C., and Belcher, C. C., concurred.

The Court.—For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded, with directions to the court below to overrule the demurrers, and grant defendants leave to answer within the usual time.  