McCusker v. Walker

Belcher, C. C. In January, 1881, the defendant herein, Thomas Walker, purchased certain real property at a sale under a decree of foreclosure of mortgage, and in due time received the sheriff’s deed therefor. The plaintiff herein, Tillatha C. McCusker, was a party to the foreclosure suit, and was in possession of the property when the sale was made and up to the time when the sheriff’s deed was executed. On the twenty-seventh day of August, 1881, Walker commenced an action against McCusker to recover the sum of twelve hundred dollars, the alleged value of the use and occupation of [210]the property during the six months allowed for redemption. At the time of commencing his action, Walker filed an affidavit and undertaking, and procured a writ of attachment to be issued, under which certain personal property of McCusker was, on the same day, seized and taken into his possession by the sheriff. In September following,r McCusker moved the court to dissolve the attachment, on the ground that the alleged indebtedness was not on a contract, express or implied, for the direct payment of money. This motion was denied in October, and an appeal from the order was taken to this court. On the twenty-eighth day of June, 1884, the order was reversed (65 Cal'. 360), and on the twenty-second day of August following, an order was entered in the court below dissolving the attachment.

This action was commenced on the twenty-fourth day of August, 1884, to recover damages alleged to have been sustained by the plaintiff in consequence of the wrongful issuance of the attachment in the case of Walker v. McCusker. It is alleged in the complaint that “plaintiff in said action willfully, maliciously, wrongfully, and unlawfully, and without probable cause, made application to the clerk of said court for a writ of attachment against the property of this plaintiff, .... and the writs were improperly, irregularly, wrongfully, and maliciously, and without probable cause, issued.” It is further alleged that the plaintiff was a farmer, and that the property attached “ was used in and was necessary to her said business of farming, and thereby the business of plaintiff was utterly broken up, and said property and the use thereof was lost to plaintiff, and her credit was destroyed, to her damage in the sum of ten thousand dollars; that the property so attached was of the value of six thousand dollars, and has been by reason of said attachment wholly lost to plaintiff, to her damage in the further sum of six thousand dollars.” The prayer is for damages in the sum of sixteen thousand dollars, and for costs.