#### DUDLEY TALBOT, Respondent, v. GREAT WESTERN PLASTER COMPANY, Appellant.

Kansas City Court of Appeals,

December 31, 1912.

1. ATTACHMENTS: Voluntarily Dismissed: Damages. Where an attachment is sued out on certain property and the attachment proceedings thereafter voluntarily dismissed, but not before the defendant has incurred expense and loss in preparing to contest the ground of attachment, the latter may recover damages in an action in the nature of an action on the case, if it be shown that no ground for attachment existed.

.2. ATTACHMENTS: Probable Cause. The statute (Sec. 2294, R. S. 1909), allows an attachment to be issued only where certain facts exist and where no such facts exist, the procurement of a writ of attachment is wrongful regardless of whether or not there was probable cause for suing out the writ.

*543Appeal from Clay Circuit *Court.*— Hon. *Francis H. Trimble,*Judge.

Affirmed.

*William G. Forsee*and *Martin E. Lawson*for appellant.

Appellant’s demurrer to the evidence should have been sustained. R. S. 1909, Secs. 2880, 2881; Snyder v. Free, 114 Mo. 370; Seeger’s Sons v. Thomas Bros., 107 Mo. 641; Dougherty v. Cooper, 77 Mo. 531; Grocery Co. v. Ashton, 69 Mo. App. 469; Potter v. McDowell, 31 Mo. 69; Oberneier v. Tresseler, 19 Mo. App. 522; Eddy v. Baldwin, 32 Mo. 369; Hoffman v. Nolte, 127 Mo. 335. In order to sustain the attachment, appellant was not required to show that these acts were done with intent to defraud; if their effect was to hinder, delay or defraud, they were fraudulent in law. Noyer v. Cunningham, 51 Mo. App. 194; Reid v. Pelletier, 28' Mo. 173; Douglass v. Cissna, 17 Mo. App. 44. Appellant was not entitled in any event to recover anything for lost time or earnings, because he did not plead any such element of damages. Zongker v. Mercantile Co., 110 Mo. App. 382; Goodloe v. Railroad, 120 Mo. App. 194; Wellmeyer v. Transit Co., 198 Mo. 527. The burden rests upon respondent to show his items of damages. As he cannot recover expenses for counsel fees except such as were incurred in defending the attachment branch of the case, it devolved upon him to show that any expense he incurred for fees were incurred upon that branch of the case. This could not rest upon mere conjecture. Fry v. Estes, 52 Mo. App. 1; State v. McHale, 16 Mo. App. 483; State v. McKeon, 25 Mo. App. 680.

*Andrew F. Evans*and *George H. English, Jr.,*for respondent.

(1) The former decision in 151 Mo. App. 538 is *res adjitdicata*of this appeal. Yan Fleet’s Former *544Adjudication, Sec. 678; Esler v. Railroad, 115 Mo. App. 574; Rigsbey v. Oil Co., 130 Mo. App. 128; Turner v. Edmonston, 212 Mo. 377. (2) The voluntary dismissal of the attachment subjects appellant to liability for the actual damages and precludes inquiry into the truth of the affidavit upon which the attachment was issued. Talbot v. Great Western P. Co., 151 Mo. App. 538; Bennett v. Bank, 61 Mo. App. 297; State to use v. McKeon, 25 Mo. App. 667; Sannes v. Ross, 105 Ind. 558; 5 N. E. 699; Vurpillat v. Zehner, 2 Ind. App. 397, 28 N. E. 556; Stein-bar dt v. Leman, 41 La. Ann. 835, 6 So. 665. (3) (a) Talbot’s application of $300 to his individual debt was not ground for attachment, having been made with his partner’s consent and before dissolution. • The contract claimed to show dissolution is inadmissible. Minter Bros. v. Railway Co., 56 Mo. App. 282; Brick Co. v. • McTaggert, 76 Mo. App. 347; 2 Elliott on Ev., Secs. 1427, 1433', 1449; Traber v. Hick, 131 Mo. 180; Pierce v. Georger, 103 Mo. 540'; Farrell v. Brennan, 32 Mo. 328; 1 Greenl. Ev., Sec. 562; Prance v. Lucy, 1 R. & M. 341; Jones v. Edwards, McClel. & Y. 139; Rose v. King, 5 S. & R. (Pa.) 241; 6 Am. & Eng. Ency. PI. ■& Pr. 797. (b) Appellant cannot claim that the conveyance to the corporation of the assets of the partnership was a ground for attachment, having recognized the validity of such transfer by accepting payment from the corporation on its debt. Gutzwiller v. Lack-man, 23 Mo. 168; Torreyson v. Turnbaugh, 105 Mo. App. 439; Thompson v. Cohen, 127 Mo. 215; Glass Co. v. Baldwin, 27 Mo. App. 44; Burnham-Munger v. Smith, 82 Mo. App. 35; Valentine v. Becker, 43 Mo. 582. (c) Appellant cannot claim that the transfer to Brent of the shares of stock issued to Talbot was a ground of attachment, for it recognized the validity of that transaction by becoming the purchaser of said share's at the execution sale under its judgment against Talbot. Tyler v. Hamblin, 58 Tenn. (11 Ileisk.) 152; *545■ Siekman v. Abernathy, 14 Colo.'174; 23 Pac. 447; Theriot v. Michel, 28 La. Ann. 107.

JOHNSON, J.

Plaintiff sned to recover actual and punitive damages for the wrongful and malicious prosecution of a suit by attachment. The case has been here on two former appeals, the first of which was taken by defendant and the second by plaintiff, and on .each occasion we reversed the judgment and remanded the cause on account of errors in instructions. [86 Mo. App. 558 and 151 Mo. App. 538]. After the last reversal plaintiff amended his petition in conformity with a suggestion in the last paragraph of our opinion. Defendant answered and before trial the parties agreed to waive a jury and to submit the case on the evidence introduced at the former trial and the agreed additional testimony of a witness relating to the subject of the amendment to the petition. Plaintiff also agreed to waive his demand for punitive damages and the cause submitted to the court was the. alleged wrongful act of "defendant in causing a writ of attachment to be issued in aid of an action against plaintiff begun by him in a justice court and in having certain shares of stock in a private corporation seized under that writ as the property of plaintiff. Plaintiff claims that he sustained actual damages in consequence of the wrongful attachment. The court found in his favor and assessed his damages at twenty-five dollars. Defendant appealed.

The action is not on the attachment bond given by defendant but is in the nature of a common law action on the case for the wrongful act of defendant in causing plaintiff’s property to be seized under a process which defendant caused to be issued and levied on a ground which, in fact was nonexistent. Some time after the seizure, defendant voluntarily dismissed the attachment proceeding but not until plaintiff had in*546curred expense and loss in preparing to contest the ground of the attachment. At the request of defendant the court gave declarations of law to the effect that the mere dismissal of the attachment proceedings was not conclusive evidence of a wrongful attachment and that plaintiff could not recover if any ground of attachment, in fact, existed. We do not find it necessary to express our opinion on the question of the soundness of this rule. In rendering judgment for plaintiff, the court found, as a fact, that when -the writ was sued out' there was no ground of attachment. This finding is supported by substantial evidence and, therefore, is not open to review on appeal. . But defendant com. plains of the refusal of the court to hold that plaintiff could not recover if defendant had probable cause for a belief that he had a true ground for procuring a writ of attachment. Our statute (Sec. 2294, R. S. 1909) allows an attachment to be issued only when certain facts exist — not when there is probable cause to believe they exist. When no such facts do exist, the procurement of a writ of attachment is wrongful and in an action on the case' founded on such wrong, the defendant in the attachment suit may recover compensatory damages regardless of whether o.r not the plaintiff had probable cause for suing out the writ. The good faith of plaintiff is without effect on such cause. We discussed this subject fully in our last opinion and see no reason for changing the views there expressed. The case was tried without prejudicial error.

Judgment affirmed.

All concur.