Special damages for loss of profits on merchandise by wrongful attachment, not alleged in the petition, cannot be recovered.* § 1844. Set-off-Cross-action

In an action on a bond to procure an attachment for wrongfully suing out such writ, plaintiff in attachment may offset his judgment obtained in the action in which the attachment issued against the damages sustained by the wrongful attachment.

A cross-action by defendant for wrongful attachment may be maintained in the same proceeding, where the attachment is discharged on motion prior to final judgment."

§ 1845. Evidence

That plaintiff took a personal judgment for the debt does not impliedly negative the dismissal, dissolution, or abandonment of a wrongful attachment."

Where one procures an order dissolving a wrongful attachment and for return of the property, and then permits it to be taken on execution by the plaintiff in attachment, the latter can show, in mitigation of damages for wrongful attachment, the sale on execution and application of the proceeds on the judgment.

8

The inventory and appraisement made under the statute by the officer levying the attachment is competent evidence of the value of the goods, as against plaintiff in the attachment.

The loss to one's business is one of the elements of damages, and evidence is admissible to show that a party could not resume business because of the attachment.10

Where the plaintiff owed defendant rent on a building occupied

4 Bradley v. Borin, 36 P. 977, 53 Kan. 628.

5 Gerson v. Hanson, 9 P. 230, 34 Kan. 590.

6 Prior to Rev. Laws 1910, § 4855, becoming effective, May 16, 1913, crossaction by defendant for wrongful attachment could not be maintained in same proceedings. Selsor v. Arnbrecht, 57 Okl. 732, 157 P. 908.

7 Overton v. Sigmon Furniture Mfg. Co., 50 Okl. 531, 151 P. 215.

8 Wade v. Ray (Okl.) 168 P. 447, L. R. A. 1918B, 796.

9 Green v. McCracken, 67 P. 857, 64 Kan. 330.

10 In an action for wrongful attachment, where plaintiff testified that he could not resume business until the October following the attachment, the exclusion of his testimony as to why he could not resume business before that time, offered to show that the attachment broke him up in business and deprived him of his means of doing business, was error, since, if the attachment was wrongfully obtained, the loss to his business was one of the elements of

as a hotel and defendant sued him therefor, brought attachment, took possession of the personalty, and ejected plaintiff, and the attachment was dissolved in an action for damages, evidence that plaintiff was illegally selling liquor, of which defendant knew before he demanded rent, but of which he made no complaint, was properly excluded.11

1846. Dismissal

In an action on an attachment bond by the assignee of defendant in the attachment for damages against the sureties, where the principal on the undertaking, who is not made a party, has an unpaid judgment against defendant, obtained in the attachment action, greatly in excess of the alleged damages, and defendant in the attachment is insolvent, the principal may become a party and defend, and, after the principal has been made a party, and has filed a verified answer setting forth all the foregoing facts, the court commits no error in refusing to allow plaintiff to dismiss his action against the principal, so that he may proceed against the sureties alone.1 12

1847. Damages

Damages recoverable on an attachment bond are compensatory, such as loss or depreciation of attached property, interest, costs, and expenses, including under the statute reasonable attorney's fees which are the proximate result of the attachment when order therefor has been wrongfully obtained.13 Punitive damages are not recoverable.14

his damages. Schwartzberg v. Central Ave. State Bank, 115 P. 110, 84 Kan. 581.

In a suit for damages for the wrongful retention of property levied on under an order of attachment after the order had been dissolved, evidence held sufficient to support a verdict and judgment for plaintiff. James McCord Co. v. Johnson Grocery Co. (Okl.) 172 P. 438.

11 Wellington v. Spencer, 132 P. 675, 37 Okl. 461, 46 L. R. A. (N. S.) 469. 12 Gerson v. Hanson, 9 P. 230, 34 Kan. 590.

13 Van Sickle v. Franklin, 62 Okl. 284, 162 P. 950.

An attorney's fee is recoverable as part of the damages in an action on an attachment bond, though it has not been previously paid by the obligee; he having incurred an obligation in good faith in a reasonable sum therefor. Bash v. Howald, 112 P. 1125, 27 Okl. 462.

Expenses necessarily incurred in procuring the dissolution of a wrongful

14 Floyd v. Anderson, 128 P. 249, 36 Okl, 308, 43 L. R. A. (N. S.) 788, Ann. Cas. 1915A, 348; Rev. Laws 1910, § 4814.

HON.PL.& PRAC.-108

(1713)

Only actual damages may be recovered against the attachment plaintiff, independent of an undertaking without allegation or proof of malice or want of probable cause.15

Where wrongful attachments have been dissolved, defendant therein is entitled to recover as damages any reasonable and necessary expenses in procuring dissolution, including reasonable attorney's fees, damages to merchandise seized, and any profits in his business if store had not been closed and goods removed under writs.16 Where property seized under an attachment wrongfully procured and later dissolved is stolen from the officer, the attaching plaintiff is liable for the damages.17

If exemplary or punitive damages are sought for wrongful attachment, both malice and want of probable cause must be alleged and proved.18

attachment and release of the property seized, including attorney's fees and costs of depositions, are recoverable by the owner in an action on the attachment bond. Parish v. Van Arsdale-Osborne Brokerage Co., 140 P. 835, 92 Kan. 286, Ann. Cas. 1916B, 981. The depreciation in the value of the prop erty and of the prices received, when they proximately result from an unlaw ful attachment, are recoverable in an action on the attachment bond. Id. 15 Reliable Mut. Hail Ins. Co. v. Rogers, 61 Okl. 226, 160 P. 914, L. R. A. 1917B, 350.

16 Leasure v. Hughes (Okl.) 178 P. 696.

Attorney fees paid to discharge an attachment wrongfully levied are a proper element of damage. Gregory Grocery Co. v. Beaton, 62 P. 732, 10 Kan. App. 256.

Where it appears, in an action brought by the plaintiff, as the owner of a stock of merchandise, to recover damages against a sheriff who has levied upon and taken possession of the stock in good faith as the property of the third party, that the plaintiff purchased back the goods from a stranger, who bid them off at the sheriff's sale, the measure of his damages is the sum thus paid (if not greater than the market value), and in addition such special damages as he has suffered from the unlawful taking. Moxley v. Haskin, 18 P. 820, 39 Kan. 653, following Dodson v. Cooper, 15 P. 200, 37 Kan. 346. 17 Stonemetz v. Gallagher, 60 Okl, 230, 158 P. 385.

18 Reliable Mut. Hail Ins. Co. v. Rogers, 61 Okl. 226, 160 P. 914, L. R. A. 1917B, 350.

Where it is alleged in a petition brought to recover damages therefor that an order of attachment was wrongfully, maliciously, and without just or probable cause, sued out; that a stock of goods was levied thereon and withheld from the owner for about two months, and that thereby his business was completely broken up,-it is not error on the part of the court, trying the case without a jury, to receive evidence showing the value of the stock on hand at the time of the attachment; that the owner was doing a business from $6,000 to $7,000 per annum, with a net profit of $1,500 to $1,600 a year; and that, on account of the attachment proceedings, his business was broken

§ 1848. Who liable

A corporation is liable for wrongfully, maliciously, and without just or probable cause, obtaining and levying an order of attachment upon personal property.19

An attaching creditor is liable for the act of a sheriff in levying on property not belonging to the debtor, when, after notice of the claim of a third person to the property, he causes it to be sold, and receives the proceeds of the sale.20

Where plaintiff after an unlawful levy on a third person's property with knowledge of the facts, defends the wrongful act, he is liable as an original wrongdoer.21 If he wishes to avoid responsibility for a wrongful levy, he should, when the facts are brought to his attention, make known his disapprobation.22

While an officer is not ordinarily to be treated as the agent of a person who causes the levy of an attachment, yet where the attachment is illegally issued and served, the officer is to be treated as acting for the person causing the levy, and the latter is liable for the wrongful levy.28

up, as in such a case vindictive or exemplary damages are allowable. Western News Co. v. Wilmarth, 6 P. 786, 33 Kan. 510, rehearing denied 8 P. 104, 34 Kan. 254.

19 Western News Co. v. Wilmarth, 6 P. 786, 33 Kan. 510, rehearing denied 8 P. 104, 34 Kan. 254.

20 H. D. Lee Mercantile Co. v. Chapman, 58 P. 125, 9 Kan. App. 374. 21 Frick-Reid Supply Co. v. Hunter, 148 P. 83, 47 Okl. 151.

22 Frick-Reid Supply Co. v. Hunter, 148 P. 83, 47 Okl. 151.

23 Gregory Grocery Co. v. Beaton, 62 P. 732, 10 Kan. App. 256.

(1715)

1858. Pleadings-Proceedings-Affidavit and bond-Interrogatories-Forms 1859. Garnishee summons-Form.

1860.

1861.

1862.

1863.

1864.

Service-Appearance.

Subsequent affidavits and summons.

Answer or affidavit of garnishee-Form.
By whom made.

Time of corporation to answer.

1865. Issues and trial.

1866. Payment into court.

1867. Default of garnishee-Judgment-Contempt. 1868.

Judgment.

DIVISION VI.-CLAIMS BY THIRD PERSONS

1877. Disclosure by garnishee-Order-Notice-Default. 1878. Action by claimant.

DIVISION VII.-WRONGFUL GARNISHMENT

1879. Grounds of liability. 1880. Measure of damages.