Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
P. E. Keeler, for Appellant.
Bartlett & Thatcher, for Respondent.
By the Court, Norcross, J. (after stating the facts):
It is the contention of counsel for appellant that the judgment cannot be sustained for the reason that this was an action for the malicious prosecution of an attachment, and the court having found that the attachment was not procured maliciously, and that plaintiff in the attachment suit, appellant herein, acted with probable cause in instituting the action and causing the issuance and levy of said attachment, had no other alternative than to render judgment for the appellantciting Levey v. Fargo, 1 Nev. 415; Fenstermaker v. Page, 20 Nev. 290; Cassinelli v. Cassinelli, 24 Nev. 182. All authorities agree that malice and want of probable cause are essential facts to be alleged and proved in an action for damages for malicious prosecution. In this action it appears, however, that the several pleadings filed by the respective parties set up all the facts growing out of the action instituted by the appellant herein for the recovery of the leased premises, and for damages for the rent alleged to be due and the unlawful detention of the premises.
All the facts being before the court, the question arises whether the court, notwithstanding the failure to establish malice and want of probable cause in the issuance of the attachment, could, nevertheless, order a judgment entered in accordance with other facts actually found within the issues made by the pleadings, and which the parties may have and which it would seem they did actually litigate before the court. There is no bill of exceptions showing that any objection was made to a consideration of any other questions than those of malice and want of probable cause, and we are not called upon to determine what should have been the course pursued by the court below if such objection had been interposed.
In this state the defendant in an attachment suit, where the attachment has been wrongfully issued, has an action upon the attachment bond for actual damages sustained not exceeding the amount of the penalty of the bond. If the attachment has been procured maliciously
and without probable cause, he may proceed under the common law in an action for malicious prosecution. (Mitchell v. Silver Lake Lodge, 29 Or. 294, 5 Pac. 798.)
In the latter action all damages that might be recovered in an action upon the bond may be recovered, but the defendant in the attachment suit is not limited in his right to recover damages in his action for malicious prosecution of the attachment, as he is in the case of an action upon the bond for a wrongful attachment merely. (Hall v. Forman, 82 Ky. 505.)
An action upon the attachment bond may be instituted without joining the sureties. (Bank v. Mayer, 100 Ga. 87, 26 S. E. 83; 4 Cyc. 850.)
The fact that the attachment lien was merged in the judgment lien, and that the property attached was sold under execution upon the judgment, does not relieve from liability upon the attachment bond. (Bennett v. Brown, 20 N. Y. 99; Ball v. Gardner, 21 Wend. 270.)
Where an action has been brought for the malicious prosecution of an attachment and a judgment for damages recovered, it has been held that no further right of action exists upon the bond, for the reason that all damages that could be recovered upon the bond may be recovered in the other action. (Hall v. Forman, supra.)
There is another element of liability shown by the facts of this case. The attachment could only be justified upon the allegation in the complaint in the attachment suit that rent was due and unpaid by the terms of the lease. It appears from the opinion of the learned judge of the court below embodied in the record that the terms of the lease required that the rent be paid three months in advance, and it was doubtless this provision which occasioned a judgment for rent by the justice's court which was not awarded upon the trial upon appeal. Be that as it may, no allowance was made in the judgment upon appeal for any rent alleged to be ...