Merron v. Title Guarantee & Trust Co.

WHITE, J.

Plaintiffs in an action for “malicious attachment ’ ’ appeal from a judgment adverse to them entered after trial before the court without a jury, and from an order denying their motion to vacate the judgment and enter a judgment for plaintiffs under section 663 of the Code of Civil Procedure. For a more extended statement of the facts in /olved, reference may be had to the opinion of this court upon a prior appeal by plaintiffs from a judgment entered after a demurrer to their complaint was sustained.

(Merron

v.

Title Guarantee & Trust Co.,

27 Cal. App. (2d) 119 [80 Pac. (2d) 740].) On that appeal the judgment of the superior court was reversed and the cause remanded with directions to permit the plaintiffs to amend their complaint should they be so advised. It appears from the present record, however, that although an amendment to the complaint was proposed, it was subsequently withdrawn, and the action went to trial upon the issues raised by the complaint and the answers thereto of the respective defendants.

As the present appeal is upon the judgment-roll alone, this court is confined to a consideration of the question of whether the judgment is supported by the findings, or whether, upon the findings made, another and different judgment should have been entered.

(Goldberg

v.

List,

11 Cal. (2d) 389 [79 Pac. (2d) 1087, 116 A. L. R. 900].) Examination of the clerk’s transcript discloses that the defendants by their answers denied that the attachment was levied with “any malicious intent”, and the trial court found “that none

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of the defendants caused said attachment ... to be levied with any malicious intent whatsoever”, and further, that “it is not true that the defendants . . . acted maliciously or illegally or without probable cause ... ”. This finding alone, which it must be assumed was based on substantial evidence, fully supports a judgment for defendants in an action for malicious levy of an attachment. “The plaintiff in such an action must allege and prove malice and want of probable cause in bringing the original action or in procuring the issuance of the ancillary proceeding therein, or he is not entitled to recover.”