Gonzales v. Cobliner

Belcher, C. C. This is an action to recover damages for the malicious prosecution of a civil action against the plaintiffs.

It is alleged in the complaint that on the twelfth day of January, 1881, the defendants, not then having any reasonable or probable cause of action against the plaintiffs or either of them, maliciously, and intending to harass, oppress, and injure the plaintiffs in their business, good name, and credit, commenced an action in a Justices’ Court to recover from the plaintiffs the sum of $299.50 for goods sold and delivered; that a writ of attachment was taken out at the same time and served by attaching certain moneys due the plaintiffs; that on the twenty-first day of the same month the attachment [153]was discharged and the moneys held thereunder released, upon the ground that the accounts sued on were not due when the suit was commenced; that thereupon the plaintiffs in said action voluntarily dismissed and discontinued the same; that at the time of the issuance of the attachment the plaintiffs were engaged in manufacturing and selling neck-wear in the city of San Francisco, and that by reason of the suit and attachment they were greatly injured in their credit and business, and suffered great pain of mind; that the plaintiffs were forced to expend and did expend the sum of seventy-six dollars in defense of the action and in procuring a dissolution of the attachment, and that they were otherwise damaged thereby in the sum of five thousand dollars, for which they asked judgment.

There was a general demurrer to the complaint, which was properly overruled.

By their answer the defendants admitted that the proceedings in the Justices’ Court were commenced and ended as alleged in the complaint; hut they denied that in commencing the action and taking out the writ of attachment they acted maliciously or without reasonable and probable cause. On the contrary, they alleged that they acted in good faith, and that before commencing the action they stated all the facts and circumstances connected with the transaction, fully, fairly, and truthfully, to an attorney who was admitted to practice law in all the courts of fhis state, and that after such statement they were'advised by him and verily believed that they had good and present causes of action against the plaintiffs herein, and full right to take out and have levied upon their property a writ of attachment; that having full faith in and acting upon the advice of their attorney, they commenced and prosecuted the action complained of.