Johnson v. King & Davidson

Citations

• 64 Tex. 226

Syllabus

<p>1. Right oe action — Damages. — The institution of a civil action by one in his own right for the purpose of enforcing a claim, whether that claim be real or unfounded, affords no cause of action against the party suing, unless by the abuse of process the person or property of the defendant be seized or in some manner injuriously affected. Following Smith v. Adams, 27 Tex., 31, and Haldeman v. Chambers, 19 Tex., 53.</p> <p>2. Same.— To create a cause of action, there must not only b§ a loss to the plaintiff, but a loss resulting from the violation of some legal right.</p> <p>3. Case distinguished.— This case distinguished from Usher v. Skidmore, 28 Tex., 633; Closson v. Staples, 43 Vt., 209; Whipple v. Fuller, 11 Conn., 582.</p> <p>4. Cases not approved. — The decisions on the question discussed in this case in Woods v. Finnell, 13 Bush, 632; Marbourg v. Smith, 11 Kan., 554, and McCardle v. McGinley, 86 Ind., 538, disapproved.</p> <p>o. Cause op action.— The mere fact that an affidavit for an attachment was made, and that an attachment issued, which was never served, can no more tend to create a cause of action against the plaintiff in such proceeding than if the averments contained in the affidavit had been embraced in a petition which was not sworn to. The attachment not having been executed, the fact that it was applied for and issued creates no cause of action for injury either to person or property.</p> <p>6. Same. — The sending of telegrams to the defendant in the former action, inquiring whether defendant had sold out his business, and the sending of other telegrams to a commercial agency to prevent the injury to his credit which he feared the suing out of the writ of attachment would cause, were not so related to the filing of the suit and issuance of the attachment as to make the cost recoverable in this action.</p>