Harris v. Harter

STURTEVANT, J.

The plaintiff commenced an action to recover damages for an alleged wrongful attachment. The defendants answered and the case was tried before the court sitting without a jury. When the plaintiff had finished introducing his case and rested the defendants made a motion that the trial court order a nonsuit. The motion was

[192]

granted. From the judgment entered thereon the plaintiff has appealed and has brought up a bill of exceptions.

In his complaint the plaintiff alleged that John B. Ellison & Sons of Philadelphia were doing business in San Francisco; that T. D. Harter and F. A. Perrigo, copartners, were doing business in San Francisco; that on the second day of September, 1921, the defendants John B. Ellison & Sons and the co-partnership Harter & Perrigo commenced an action in the superior court against M. L. Harris upon an alleged account for goods sold and delivered, claiming $2,263.01; that thereupon defendants took out a writ of attachment for the sum alleged to be due and caused said writ to be levied September 3, 1921, on the furniture, equipment, fixtures, and goods in plaintiff’s place of business in Oakland; that the sheriff retained possession thereof until the said M. L. Harris furnished a bond to secure the release of said property and which bond was furnished on the said third day of September, 1921; that on the thirtieth day of September, 1921, for the sum of $1,986.99 the attaching creditors caused said action to be dismissed and the writ of attachment to be released and discharged; that on the second day of September, 1921, M. L. Harris was indebted to John B. Ellison & Sons in of the sum of $1,970.34 and no more, “ . . . but that only the sum of $441.51 of said sum was due or owing when said action was commenced and said attachment was levied upon the goods and material ...” of M. L. Harris; that the said M. L. Harris was ready, able, and willing to pay, at the time said attachment was issued and levied, the sum of $441.51; that said action was commenced and the writ of attachment was caused to be issued “maliciously and without probable or any cause therefor and for the purpose of harassing and annoying plaintiff herein and to put him to great trouble and expense and in causing said writ of attachment to be issued and levied the defendants and each of them were guilty of oppression and malice”; that the plaintiff was damaged in the sum of $25,000.