McPheeters v. Bateman

SHINN, J.,

pro

tem.

This is an appeal by defendant Alynette Bateman from a judgment for damages caused by the levy of an execution upon the property of plaintiff herein, who was not the judgment debtor. The only question involved is the sufficiency of the evidence to support findings as to various items of damage making up the total sum of the judgment for $127.

McPheeters owned a restaurant in San Luis Obispo. One Tucker, the judgment debtor, had been in complete charge thereof for more than a year, during which time McPheeters remained in Long Beach. The constable levied an execution at the instance of appellant Bateman under a judgment" she held against Tucker. The instruction to the constable was to levy upon “the eating place known as the Hamburger Orchard, located on Morro Street, with all equipment therein”. The place was locked up for five days. Actual damages were

[108]

awarded against appellant in the sum of $40 for loss of .profits while the business was closed, the sum of $25 for food in the building which spoiled, and for $12 which had been paid for meat which had to be destroyed because it could not be used. Upon a finding that the defendant Bateman was actuated by malice in causing the levy of the execution, judgment went against her for the additional sum of $50 as exemplary damages. Judgment went in favor of her codefendant, the constable.

The complaint does not allege nor does the evidence show want of probable cause for levying the writ. There is no finding one way or the other on that matter.

Want of probable cause is an essential element of malicious prosecution. (16 Cal. Jur. 737.) The same rule applies to ancillary writs, such as the writ of attachment

(Vesper

v.

Crane Co.,

165 Cal. 36 [130 Pac. 876, L. R A. 1915A, 541];

King

v.