Mills v. Vollmer-Clearwater Co.

217 P. 3, 126 Wash. 73, 1923 Wash. LEXIS 1081

• Court: Washington Supreme Court
• Decided: August 9, 1923
• Docket: No. 17965
• Status: Published

Opinion

Per Curiam.

— The trial court found that, on August 3, 1920, the appellant began an action against the respondent and filed an affidavit on that day for attachment and issued an attachment bond; that the attachment was issued thereon and a levy made upon an automobile belonging to the respondent; that the affidavit was insufficient, and that thereafter, on the 7th of August, the appellant filed a new affidavit for attachment and new bond and a writ was issued and the automobile was again attached; that in November, 1920, the writs were duly dissolved and that there was no probable cause for the issuance of either writ, and entered judgment based on these findings against the respondent for the damages caused by the unlawful detention of the automobile and attorney’s fee. From that judgment, this appeal has been prosecuted.

The record shows that the attorney for the appellant collected'the information upon which the attachment was issued, having had placed in his hands for collection a bill against the respondent. It is admitted that the first affidavit stated no ground for attachment. The second affidavit was made after the appellant had secured, as we are satisfied from the .record, information of sufficient property in the state owned by the respondent out of which judgment, if one should be obtained, could be satisfied. It is the appellant’s contention that, having turned the entire, matter over to its attorney, who made the investigation of both the facts and the law, and filed the attachment, it is relieved from liability, and relies on this upon the decision of this court in Levy v. Fleischner, 12 Wash. 15, 40 Pac. 384. The cases of Voss v. Bender, 32 Wash. 566, 73 Pac. 697, and Wild Rose Orchard Co. v. Critzer, 79 Wash. 462, 140 Pac. 561, are- cited by the respondent as limiting the rule laid down in Levy v. Fleischner, supra.

We find it unnecessary to restate the rule or to enter into any analysis of these decisions; for we are satisfied that the respondent is entitled to recover because of the wrongful execution of the attachment under the second affidavit, even under any interpretation that, may be given to the decision in the Levy case; for, at: the time the second affidavit was filed, the appellant was in possession of facts which precluded the issuance of the attachment; and under the Levy case, it was the duty of the appellant to have submitted to its attorney all the facts of which it had possession, failing to do which it cannot claim immunity because of having followed the advice of counsel. Rem. Comp. Stat., § 6654 [P. C. § 865]. We are satisfied from the entire record that the judgment should be; and it is, affirmed.