Steen v. Ross, Keen & Co. , 22 Fla. 480 ( 1886 )

The Chief-Justice delivered the opinion of the court:

The plaintiff in error brought his suit against the defendant in the Circuit Court of Escambia county on an attachment bond. The declaration alleges that Ross, Keen & Co., on June 4th, 1883, sued out an attachment against the goods and chattels of the plaintiff; that said Ross, Keen & Co., in order to obtain the writ of attachment, gave the bond sued on. That said bond was conditioned to pay to-the plaintiff all costs and damages he might sustain in consequence of improperly suing out said attachment. The declaration further alleges that by the judgment of this court it was determined that said attachment was improperly sued out, and that in consequence thereof he was greatly damaged.

To this declaration the defendant filed a demurrer and assigned the following reasons :

1st. Because it does not show any breach of the condition of the bond sued on.

2d. It does not set forth any cause of action.

The Circuit Court, sustained the demurrer, and the plaintiff declining to amend his declaration judgment was entered against him.

The plaintiff assigns the sustentation of the demurrer as error.

The writ for the attachment of the property of a defendant, being an extraordinary remedy, authorizing a seizure of his property at the commencement of the suit before there had been a judicial determination as to the fact of his indebtedness to the plaintiff, or even an opportunity for such determination, the law authorizing its issuance has thrown around it several safeguards to protect the defendant from its abuse and to indemnify him for such loss or damage as he may sustain from its improvident issue.

Unlike an ordinary suit it requires the plaintiff to make an affidavit before a competent officer of the justness of his claim, and also of the existence of one or more of the special causes enumerated in the statute as pre-requisite to its issuance. It also requires the plaintiff to give a bond with at least two sureties in double the amount claimed, conditioned to pay to the plaintiff all such costs and damages as he may sustain in consequence of said writ being sued out improperly. In addition it provides that the court which issued it shall always be open to hear a motion for its dissolution.

These provisions are for the purpose of preventing its improvident use. The declaration alleges that by a decision of this court it was determined that said writ was improperly issued. We think that the word “improperly,” as used in the statute, has a broader signification than a mere irregularity, and that it is insufficient to allege as a breach of the condition, although in the express words of the bond, that it was improperly issued. The breach should state with distinctness in what its impropriety consisted. It is only improperly issued when the plaintiff has no meritorious cause of action, of that class of actions in which the law authorizes a resort to the remedy against the defendant, or having such a cause of action the ground alleged in the affidavit for its issue is untrue, or not one of the grounds enumerated which must exist before it can be obtained. We do not think it was intended to cover a case where the plaintiff had a meritorious cause of action of the class for which an attachment may legally issue, and when the cause for its issuance is one of those specified in the statute, and such cause is true if the attachment was dissolved for some irregularity or for some technical reason. Drake on Attachments, secs. 167, 170, 170a ; Petit vs. Mercer, 8 B. Monroe, 51; Sharpe vs. Hunter, 16 Ala., 765 ; 73 Ala., 183 ; Eaton vs. Nave, McCord & Co., 5 Neb., 469; Nockles vs. Eggspieler, 47 Iowa, 400; Raver vs. Webster, 3 Iowa, 502.

In such a ease the breach alleged in the declaration should state the ground on which it was dissolved by positive averments, showing such a failure to comply with the conditions of the bond as the statute meant it to guard against. As to requisites of stating a breach, see 1 Saunders on Pleading and Evidence, p. 654.

There was no error in sustaining the demurrer and the judgment of the court below is affirmed.