Sharp v. Miller

Department No. 2, Sharpstein, J.: The plaintiff, after alleging in his complaint that he was, at all the times therein mentioned, the owner of certain specified [330]real estate in the City and County of San Francisco, proceeds to state that on the 13th day of June, 1874, the defendant did maliciously procure one Charles L. Morris, then a non-resident of this State, and for the immediate benefit and profit of the defendant, to institute and prosecute a certain action in one of the District Courts against the plaintiff for the recovery of $51,000 and upward; that in said action defendant maliciously and without probable cause, and for his own benefit, procured to be issued by the Clerk of said Court, in said action, a writ of attachment directed to the Sheriff; that on the same day the defendant and one Carlton W. Miller filed the requisite undertaking with the Clerk, the condition of which was, that if the plaintiff herein should recover judgment against said Morris, in the action commenced by him as aforesaid, that defendant and his cosurety in said undertaking should pay to the plaintiff herein all costs and damages that he might sustain by reason of said attachment; that on the same day, the defendant herein maliciously and without probable cause delivered said writ of attachment to the Sheriff, and did then and there maliciously, etc., cause and direct said Sheriff to levy upon plaintiff ’s property ; that a copy of the writ was duly recorded, etc., and continued a lien upon plaintiff’s property until the 23rd day of January, 1877, “when a judgment was affirmed in said action of Charles L. Morris against this plaintiff, in favor of this plaintiff, for the sum of $300, costs and expenses, by the Supreme Court of this State.” That by reason of the issuing and levying of said attachment on plaintiff’s property, he was prevented from selling it or any part of it, to his damage, $8,500, and was compelled to pay counsel in order to get rid of said lien, $1,500. Whereupon he demanded judgment for $10,000 and costs of suit.

The complaint was demurred to, on' the grounds that it did not state facts sufficient to constitute a cause of action, and that the cause of action was barred by subdivision 1 of § 339 of the Code of Civil Procedure. The demurrer was overruled, and the defendant answered. In his answer, the defendant alleged, among other things, that the action was barred by the provision of the Code referred to in his demurrer. It was [331]