Bailey v. McDougal

GRIFFIN, P. J.

Plaintiff-appellant William C. Bailey brought this action against Donald C. MeDougal, doing business as Mack's Refrigeration, and Hartford Accident and Indemnity Company, a corporation (hereinafter referred to as “Hartford”), alleging that on February 19, 1958, in a cause pending in the municipal court between MeDougal as plaintiff and Bailey as defendant, MeDougal caused an attachment to be levied on Bailey’s bank accounts and executed a certain undertaking on attachment which was filed therewith; that by reason thereof, Bailey was required to file an undertaking by Pacific Indemnity Company for release of attachment; that as a result of said attachment, Bailey was forced to go into bankruptcy; that his credit became impaired and he was damaged in the sum of $20,000. Judgment in the municipal court action went in favor of McDougal. The judgment in the municipal court was appealed. It is alleged that Pacific Indemnity Company was required to pay attorney’s fees in the sum of $1,000 for protecting said appeal under the undertaking and that Bailey became liable therefor on appeal from the final judgment. On appeal, judgment was rendered for Bailey and he demanded of MeDougal $21,500 damages claimed to have been sustained by reason of the attachment.

[180]

Then follows a claimed cause of action against defendant Hartford on the same grounds, seeking $3,000 damages. Defendants here answered and denied generally these allegations and as an affirmative defense alleged that defendants acted without malice and under advice of counsel and that plaintiff was not the holder of a cause of action against defendants.

After the trial of the instant case in the superior court, and after some evidence was taken, defendant McDougal moved for judgment in his favor because the complaint did not state a cause of action against him. It was granted and the trial proceeded as to defendant Hartford. The court found that as a result of said writ of attachment certain attempted garnishments were made; that the sheriff thereupon filed his return of service upon said garnishments showing that returns upon all of said garnishments were negative except there was one return on said garnishment in the amount of $14.70; that upon stipulation of the parties in said municipal court action made in writing and entered in said action, said writ of attachment was forthwith discharged and all funds or properties, if any, attached or garnished thereunder were forthwith released; that plaintiff expended no sums whatsoever for attorney’s fees in connection with the release or discharge of said writ of attachment and that all of the attorney’s fees, if any, paid by the plaintiff were in connection with the trial of the municipal court action and not in connection with the discharge or the release of the writ of attachment and that plaintiff suffered no damages whatsoever in connection with said attachment as a result of McDougal or Hartford’s actions and that all of the allegations of plaintiff’s complaint were untrue. Judgment was entered that plaintiff take nothing by his complaint. Plaintiff appealed.