6 Am. Jur. 2d Attachment and Garnishment § 609
American Jurisprudence, Second Edition
Attachment and Garnishment
Kimberly Castelaz, J.D., Laura Hunter Dietz, J.D., Mindy Pittell Hurwitz, J.D., Lucas Martin, J.D., Anne M. Payne, J.D., Eric C. Surette, J.D.
XVI. Wrongful Attachment or Garnishment [§§ 604–655]
A. In General; The Cause of Action [§§ 604–617]
Topic Summary Correlation Table References
§ 609. What constitutes wrongfulness
Generally speaking, if the plaintiff in the action in which the attachment or garnishment is issued succeeds in maintaining his main action, and also the attachment or garnishment, there is no cause of action for wrongful attachment or garnishment.[FN54] An attachment is sued out wrongfully where no grounds for attachment exist,[FN55] but if any one of the grounds upon which a plaintiff predicates his right to attachment is true, the attachment is not wrongfully sued out.[FN56] An attachment is wrongful where it appears that the plaintiff in the attachment has no cause of action or that no indebtedness exists.[FN57] However merely because, under a counterclaim, the accounts may be balanced and the plaintiff denied a recovery does not necessarily mean that the plaintiff did not have a cause of action.[FN58] It has been said that whether a garnishment is wrongful depends upon whether the steps taken by the party seeking the writ comply with the statute authorizing such relief.[FN59] It has also been stated that a prejudgment garnishment without notice or opportunity for hearing is, as a matter of law, wrongful.[FN60]
The fact that the defendant in the principal action finally prevailed and that the attachment was dissolved has been held conclusive that the attachment was wrongful.[FN61] A like rule may apply where the attachment is dissolved upon the merits,[FN62] as where it is based on insufficient grounds,[FN63] even though the attaching creditor recovers judgment in the main action.[FN64] So too, mistakenly commencing an action at law which could not be maintained, and obtaining issuance of a writ of garnishment by which the principal defendants in the proceedings were deprived of possession of their property constitutes a wrongful garnishment, regardless of whether the principal action was dismissed with prejudice after trial upon the merits or dismissed without prejudice because of procedural error.[FN65] However, there is authority that the mere fact that a writ of attachment or garnishment was quashed or that the suit was abandoned or dismissed does not give rise to a presumption that the attachment or garnishment was wrongful.[FN66] Dissolution of an attachment for a mere informal error is not sufficient proof that it was wrongfully sued out.[FN67] Likewise, a mere judgment of involuntary nonsuit against the plaintiff in the principal action has been held not to show that the attachment was wrongful.[FN68]
To recover damages for wrongful garnishment, a defendant need not prove that plaintiff lacked probable cause as is required in case of alleged wrongful attachment; rather, if the plaintiff does not recover a judgment against the defendant, the garnishment is wrongful, even though the primary action is dismissed without prejudice.[FN69]
[FN54] Ross v. Peck Iron & Metal Co., 264 F.2d 262 (4th Cir. 1959); Exchange Lumber & Mfg. Co. v. Thomas, 71 Idaho 391, 233 P.2d 406 (1951); Westerman v. Comerica Bank-Texas, 928 S.W.2d 679 (Tex. App. San Antonio 1996), reh'g overruled, (Sept. 3, 1996) and writ denied, (Nov. 26, 1996) and reh'g of writ of error overruled, (Jan. 10, 1997).
If the plaintiff recovers judgment upon the proceedings in attachment, as well as in the main action, the defendant is concluded thereby. Waring v. Fletcher, 152 Ind. 620, 52 N.E. 203 (1898).
[FN55] Andrew Brown Co. v. Painters Warehouse, Inc., 11 Ariz. App. 571, 466 P.2d 790 (Div. 1 1970); Wiley v. Howard, 180 Ill. App. 3d 721, 129 Ill. Dec. 502, 536 N.E.2d 186 (2d Dist. 1989); Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. Ct. App. 1996), reh'g denied, (Apr. 5, 1996) and review denied, (June 11, 1996); Brown v. Peoples Nat. Bank of Wash., 39 Wash. 2d 776, 238 P.2d 1191 (1951) (distinguished by, Wagner Development, Inc. v. Fidelity and Deposit Co. of Maryland, 977 P.2d 639 (Wash. Ct. App. Div. 2 1999)).
An attachment may be said to have been sued out wrongfully where grounds upon which plaintiff predicates its right to attachment are false. Rockport Co. v. Wedgewood, Inc., 447 N.W.2d 126 (Iowa 1989).
A garnishment is wrongful if the facts set forth in the affidavits prescribed by statute are untrue. Chandler v. Cashway Bldg. Materials, Inc., 584 S.W.2d 950 (Tex. Civ. App. El Paso 1979).
[FN56] Painter v. Munn, 117 Ala. 322, 23 So. 83 (1898); Hiers v. Cohen, 31 Conn. Supp. 305, 329 A.2d 609 (Super. Ct. 1973); Brown v. Peoples Nat. Bank of Wash., 39 Wash. 2d 776, 238 P.2d 1191 (1951) (distinguished by, Wagner Development, Inc. v. Fidelity and Deposit Co. of Maryland, 977 P.2d 639 (Wash. Ct. App. Div. 2 1999)).
[FN57] Hansen v. Northrup, 243 Iowa 1101, 54 N.W.2d 815 (1952); Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. Ct. App. 1996), reh'g denied, (Apr. 5, 1996) and review denied, (June 11, 1996); First Nat. Bank of Commerce v. Boutall, 422 So. 2d 1159 (La. 1982).
[FN58] Hansen v. Northrup, 243 Iowa 1101, 54 N.W.2d 815 (1952).
[FN59] Chandler v. Cashway Bldg. Materials, Inc., 584 S.W.2d 950 (Tex. Civ. App. El Paso 1979).
[FN60] Texas Commerce Bank Nat. **** v. Tripp, 516 S.W.2d 256 (Tex. Civ. App. Fort Worth 1974), dismissed, (Apr. 9, 1975) and (declined to follow on other grounds by, First Nat. Bank of Midland v. Stoutco, Inc., 530 S.W.2d 619 (Tex. Civ. App. San Antonio 1975)).
[FN61] Smith v. Summers, 215 Ala. 690, 112 So. 344 (1927); Dynatronics, Inc. v. Knorr, 247 So. 2d 70 (Fla. Dist. Ct. App. 2d Dist. 1971); Neri v. J.I. Case Co., 207 Ill. App. 3d 409, 152 Ill. Dec. 488, 566 N.E.2d 16 (2d Dist. 1991); Gale v. Transamerica Corp., 65 Ill. App. 3d 553, 22 Ill. Dec. 92, 382 N.E.2d 412 (1st Dist. 1978) (declined to extend by, Leone Grain and Supply, Inc. v. Boers, 251 Ill. App. 3d 330, 190 Ill. Dec. 439, 621 N.E.2d 611 (3d Dist. 1993)); Ashland Oil, Inc. v. Arnett, 507 N.E.2d 561 (Ind. 1987); Newby v. U. S. Fidelity & Guaranty Co., 49 Wash. 2d 843, 307 P.2d 275 (1957) (superseded by statute on other grounds as stated in, Wagner Development, Inc. v. Fidelity and Deposit Co. of Maryland, 977 P.2d 639 (Wash. Ct. App. Div. 2 1999)).
The wrongfulness of the attachment is res judicata by virtue of a judgment against the attaching creditor in the attachment suit. Powell v. Schultz, 118 S.W.2d 25 (Mo. Ct. App. 1938).
The proceeding with which the court is concerned in this connection is the attachment proceeding. If the attachment is discharged on the merits, the fact that a suit on an obligation which developed into a cause of action for the plaintiff after the attachment proceedings had been terminated is immaterial. Blankenship v. Staton, 348 S.W.2d 925 (Ky. 1961).
[FN62] Duo-Therm Division, Motor Wheel Corp. v. Sheergrain, Inc., 504 S.W.2d 689 (Ky. 1973); Houma Mortg. & Loan, Inc. v. Marshall, 664 So. 2d 1199 (La. Ct. App. 1st Cir. 1995); Williard v. Federal Surety Co., 91 Mont. 465, 8 P.2d 633 (1932).
[FN63] Bash v. Howald, 59 Okla. 116, 157 P. 1154 (1916), error dismissed, 244 U.S. 648, 37 S. Ct. 743, 61 L. Ed. 1370 (1917).
[FN64] Even though an attaching creditor may recover judgment in the main action, he is concluded from saying the proceedings in attachment were not wrongful if he fails to sustain the attachment. Waring v. Fletcher, 152 Ind. 620, 52 N.E. 203 (1898).
[FN65] Maib v. Maryland Cas. Co., 17 Wash. 2d 47, 135 P.2d 71 (1943).
[FN66] American Surety Co. of New York v. Florida Nat. Bank & Trust Co., 94 F.2d 126 (C.C.A. 5th Cir. 1938); Hobson & Associates, Inc. v. First Print, Inc., 798 S.W.2d 617 (Tex. App. Amarillo 1990).
[FN67] Boatwright v. Stewart, 37 Ark. 614 (1881).
[FN68] Jansen v. Pollastrine, 10 Alaska 316, 1942 WL 1310 (Terr. Alaska 1942); Siegel v. Northern Boulevard & 80th St. Corp., 31 A.D.2d 182, 295 N.Y.S.2d 804 (1st Dep't 1968).
[FN69] Huzzy v. Culbert Const. Co., 5 Wash. App. 581, 489 P.2d 749 (Div. 1 1971).