Summary
In Sharp v. Miller, 57 Cal. 431, the action was brought to recover damages for the malicious suing out of a writ of attachment and levying it upon the real property of plaintiff; and it was held that the action was barred after two years from the time of the levy.
Summary of this case from McCusker v. WalkerOpinion
Department Two
Appeal from a judgment for the defendant, in the Twenty-third District Court, City and County of San Francisco. Thornton, J.
COUNSEL
Hunt & Rising, and G. F. & W. H. Sharp, for Appellant.
P. B. Ladd, for Respondent.
JUDGES: Myrick, J. Morrison, C. J., and Thornton, J., concurred.
OPINION
MYRICK, Judge
This action was brought to recover damages for the malicious and groundless suing out of a writ of attachment in a suit against a third party, and levying it upon real estate belonging to and standing in the name of plaintiff. The alleged levy was June 17th, 1874, and this action was not commenced within two years thereafter. The defendant demurred on several grounds, among others that the cause of action was barred by the Statute of Limitations. (§ 339, subd. 1, Code Civ. Proc.) Upon that ground, the Court below sustained the demurrer, and plaintiff appealed. It is alleged in the complaint, that plaintiff bargained the premises to one Forbes, but that in consequence of the levy he refused, February 4th, 1875, to complete the purchase; and that the suit was pending until January 25th, 1877, at which time judgment was rendered against the plaintiff therein, who is the defendant here; and it is urged that the statute did not commence to run until the final determination of that suit, or at least until Forbes's refusal to complete the purchase. Even granting (which we do not) that plaintiff ever had a cause of action, we are of opinion that the Statute of Limitations commenced to run June 17th, 1874.
Judgment affirmed.