
    GALLOWAY et al. v. MORRIS & CO.
    (No. 10103.)
    (Court of Civil Appeals of Texas. Port Worth.
    Feb. 3, 1923.)
    1. Malicious prosecution <&wkey;72(5) — Not erroneous to' submit issues of whether plaintiff in attachment acted, with reasonable prudence or without probable cause as bearing on exemplary damages.
    In an action for debt, where plaintiff sued out a writ of attachment, and defendants in their answer and by way of cross-bill asked damages for the wrongful issuance thereof, it was not erroneous to submit to the jury issues of whether in procuring the writ of attachment plaintiff acted as a person of reasonable prudence, and whether plaintiff in procuring the issuance thereof intended to injure defendants, and acted without probable cause, for the reason that, where an attachment is based upon an affidavit in fact untrue, though there was probable cause for its issuance,, the defendant is still entitled to recover for any actual damages suffered, and the good faith of the attaching creditor is involved where exemplary damages are sought.
    2. Malicious pirosecution <&wkey;G7 — Loss of credit not basis for recovery of actual damages.
    Loss of credit is not a basis for the recovery of actual damages.
    3. Appeal and error <&wkey;907(3) — Evidence presumed insufficient to sustain finding of jury disregarded by court.
    Where answer in attachment assérted malicious prosecution of the attachment, claiming damages’ by loss of credit and business, and the jury found defendant entitled to nominal dam-, ages therefor, but the court entered judgment for plaintiff, it will be presumed on appeal in absence of statement of facts that the evidence did not sustain the recovery as to such loss.
    4. Malicious prosecution <&wkey;68 — No exemplary damages recoverable in the absence of a finding for actual damages.
    In an action for debt, where plaintiff answered, and by way of cross-bill pleaded damages for wrongful attachment, and the jury returned a verdict for plaintiff and made a finding of nominal damages for defendants on their cross-bill, it was not error, in refusing to consider the finding of the jury,, that defendants, had suffered to the extent of the nominal damages, or to credit the amount of the finding for defendant on the verdict for plaintiff, for the reason that no exemplary damages can be recovered in the absence of a finding for actual damages.
    5. Appeal and error <&wkey;920(4) — Replevin bond not presumed to have been given.
    In an action for debt, in which plaintiff sued out a writ of attachment, and the court foreclosed the attachment lien, but did not make an award against the sureties on replevin bond, where no replevin bond appears in the transcript it will not be presumed that one was, given.
    6. Attachment <&wkey;>2l7 — May be foreclosed re- . gardless of judgment on replevy bond.
    In an action for debt, in which plaintiff sued out a writ of attachment, the court had authority to foreclose the attachment lien regardless of whether judgment was rendered on the re-plevin bond given.
    7. Appeal and error &wkey;>l073(l) — Where defendants acknowledged debt sued on, they cannot complain of property subjected to judgment rather than that of sureties on re-plevin bond.
    Where, in an action for debt, in which • plaintiff sued out a writ of attachment, the defendants acknowledged in open court by plea that they owed the debt for which plaintiff sued, they are in no position to complain that their property is subjected to the payment of the 'judgment awarded, rather than on the bondsmen on the replevin bond.
    Appeal from Tarrant County Court; W. P. Walker, Judge.
    Action by Morris & Co. against M. D. Galloway and others. Prom a judgment for plaintiff, defendants appeal.
    Affirmed.
    Mays & Mays, of Port Worth, for appellants.
    O. E. McGaw, of Pbrt Worth, for appellee.
   ■BUCK, J.

Morris & Co, sued M. D. and P. E. Galloway for debt, and sued out a writ of attachment. Defendants in their answer, and by way of cross-action, pleaded:

“That about the 7th day of July, 1921, plaintiffs in said cause illegally, wrongfully, without probable cause, and willfully, and with the express purpose of vexing, harassing, annoying, and injuring defendants in their business, good will, credit, and good name, willfully, wrongfully, and maliciously caused to be issued an attachment against their place of business in Port Worth, Tex., and said attachment was levied upon their said place of business as aforesaid, and such action was published and made known through Port Worth and vicinity, where defendants were engaged in business, whereby their business, good name, reputation, and credit was damaged in the sum of $500,” etc.

The final prayer is perhaps sufficiently full to justify the recovery of actual and exemplary damages, too. At 'any rate, appellants state in their brief that they asked_ for actual and exemplary damages. Upon the trial defendants admitted the justness of the debt, and the cause was submitted to the jury on special issues, upon the defendants’ cross-action, and the jury found: .

(1) That at the time of the issuance of the writ the defendants.wefe not about to convert their property, or a part of it, into money for the purpose of placing it beyond the réach of their creditors.

(2) That a person of “reasonable prudence, situated in the position’ of plaintiffs at the time,” would have concluded that the defendants were about to convert their property into money for the purpose of placing it beyond the reach of their creditors.

(3) That the plaintiff did not willfully and maliciously procure the issuance of the writ for the .purpose of injuring and harassing the defendants, nor did the piaintiff procure such issuance without probable cause.

(4) That by reason of the issuance of the writ, and the levy thereof, the defendants were injured by loss of • credit, and loss of business in the sum of $1.

Upon this verdict the court entered judgment for plaintiff for its debt, with interest, and all costs, and decreed that defendants taire nothing by reason of their cross-action. The defendants have appealed.

No statement of facts is in the record. The grounds of complaint urged by appellants are: (1) The court erred in rendering judgment for the full amount of the debt, and should have rendered judgment for such amount less $1, and should have adjudged the costs of the issuance of the writ against plaintiff. (2) The court erred in submitting the question of whether in procuring the writ of attachment plaintiff acted as a person of reasonable prudence. (3) The court erred in submitting the issue of whether plaintiff in procuring the issuance of the writ intended to injure the defendants, and acted without probable cause. (4) That the court erred in foreclosing the attachment lien, and that the judgment should have been against the bondt-men in replevin. That on account of such replevin no right existed to foreclose the attachment lien.

Certainly it was not error to submit the two issues mentioned, inasmuch as defendants were asking for exemplary damages. While, where an attachment is based upon an affidavit in fact untrue, though there was probable cause for its issuance, the defendant is still entitled to recover for any actual damages suffered (Yarborough v. Weaver, 6 Tex. Civ. App. 215, 25 S. W. 468, and cases there cited), yet the good faith of the attaching creditor is involved where exemplary damages are sought (Carothers v. McIlhenny Co., 63 Tex. 138; Jacobs, Bernheim & Co., v. Crum, 62 Tex. 401). Hence we overrule these two assignments.

Loss of credit is held not to' be the basis for the recovery of actual damages. Traweek v. Martin-Brown Co., 79 Tex. 460, 14 S. W. 564; Wallace v. Finberg, 46 Tex. 35. It will be remembered that the issue submitted to the jury was whether, by reason of the issuance and levy of the attachment, “defendants were injured by loss of business and loss of credit.” Even if loss of business is a basis for the recovery of actual damages, yet, in the absence of a statement of facts, we must indulge the presumption that the evidence did not sustain the recovery as to a loss of business. But 2 R. C. L. p. 911, art. 123, says:

“And, according to the weight of authority, mental suffering, sickness, injury to the character, or humiliation, as well as injury to credit, or loss of business, are elements too speculative to be considered in assessing damages sustained by the wrongful suing out of an attachment.”

To the same effect is 4 Cyc. p. 881. Kirbs & Spies v. Provine, 78 Tex. 353, 14 S. W. 849, holds that loss of business occassioned by the wrongful seizure of goods under attachment is not an element of actual damages, but may be recovered in exemplary damages. See Kaufman v. Armstrong, 74 Tex. 65, 11 S. W. 1048. Therefore we must conclude, under the decisions of our Supreme Court, at least, that the $1 awarded to defendants was awarded, as a matter of law, in the way of exemplary damages. Since no exemplary damages can be recovered in the absence of a finding for actual damages, it follows that the trial court did not err in refusing"to consider the finding of the jury that defendants had suffered injury to the extent of $1 in loss of credit or loss of business by the issuance of the writ of attachment.

Only one more question may be noticed, i. e., as to the alleged error in foreclosing the attachment lien, and in not awarding -against the sureties on the replevin bond. No replevin bond appears in the transcript, and, there being no statement of facts, we cannot presume that one was given. Moreover, the decisions support the conclusion that the trial court may foreclose the attachment lien as well as render judgment on the replevin bond. Atkinson v. Witte (Tex. Civ. App.) 54 S. W. 611, and causes there cited; Coopwood v. Wofford (Tex. Civ. App.) 219 S. W. 504; Green v. Hoppe (Tex. Civ. App.) 175 S. W. 1117. Moreover, inasmuch a» defendants acknowledged in open court -by plea that they owed the debt for which plaintiff sued, it would appear that they are in no position to complain that their property is subjected to the payment of the judgment awarded, rather than that of the bondsmen on the replevin bond.

■All assignments are overruled, and the judgment is affirmed. 
      <§=cEor other.cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     