LUDEMAN v. SMITH

LUDEMAN v. SMITH
1920 OK 109
188 P. 661
77 Okla. 308
Case Number: 9631
Decided: 03/16/1920
Supreme Court of Oklahoma

LUDEMAN
v.
SMITH.

Syllabus

¶0 Attachment--Damages for Wrongful Attachment.
This cause is affirmed in part and reversed and remanded in part with directions, for reasons stated in the opinion.

Error from District Court, Atoka County; J. H. Linebaugh, Judge.

Action by B. W. Ludeman against Mary E. Smith for damages growing out of a real estate transaction. Judgment for defendant on her cross-petition for damages, and the plaintiff brings error. Affirmed in part and reversed in part, with directions.

M. A. Dennis, for plaintiff in error.

HIGGINS, J.

¶1 The plaintiff in error instituted this suit against the defendant in error in the district court of Atoka county for damages growing out of a real estate transaction, and secured a writ of attachment and levied the same on the lands of the defendant in error. The defendant in error denied the allegations of the petition of plaintiff in error and filed a cross-petition for damages sustained by her for the wrongful issuance of the writ of attachment. The verdict of the jury was for the defendant in error on the main issue, and upon her claim for damages for the wrongful attachment found that she had been damaged in the sum of $ 25, and fixed the amount of the attorney fee she was entitled to recover at $ 50. From a judgment entered upon this verdict, the plaintiff in error appeals to this court.

¶2 In the brief herein filed the plaintiff does not assign as error any error of the court in the main action in the case wherein he is losing party, but does assign as error that part of the judgment of the trial court wherein damages are assessed against him upon the allegation that the writ of attachment was wrongfully issued and in fixing an attorney fee by reason of same.

¶3 An examination of the record and a consideration of the brief filed by plaintiff in error leads us to believe, and we so find, that under the pleadings and evidence in this case the trial court erred in entering a judgment for the defendant in error granting to her damages and attorney fee upon the theory that the writ of attachment had been wrongfully issued.

¶4 It is the judgment of this court that the judgment of the trial court that the plaintiff in error sustained no damages upon the allegations set forth in his petition be affirmed, but that part of the judgment wherein the defendant recovered damages and an attorney fee for the alleged wrongful issuance of an attachment is reversed and remanded, with direction that the trial court enter judgment therein in favor of the plaintiff in error, the plaintiff in the lower court.