PYE et al. v. CARDWELL, 222 S.W. 153

GREENWOOD, J. The question certified is whether a cause of action was alleged by appellee for damages, actual and exemplary, resulting from the institution against her of seven suits at the instigation of appellants.

It was averred that the suits were brought in furtherance of a conspiracy by, the three appellants to unlawfully extort money from appellee, which appellants knew she did not owe; that appellants used the names of other persons in bringing the suits; that, as fast as appellee employed counsel to present her defense in each suit, it was dismissed and a new suit was filed in a different place; that the suits caused appellee great worry, annoyance and physical inconvenience, and also caused her to lose sleep, peace of mind, and business; and that she incurred $50 attorney’s fees; and she prayed for the recovery of $250 actual damages and $700 exemplary damages.

The rule is firmly established in Texas which denies an award of damages for the prosecution of civil suits,' with malice and without probable cause, unless the party sued suffers some interference, by reason of the the suits, with his person or property. Smith v. Adams, 27 Tex. 30; Salado College v. Davis, 47 Tex. 134; Johnson v. King, 64 Tex. 226.

It is claimed that the rule stated should not govern this case for two reasons: First, that since in each suit a foreclosure was sought of an alleged chattel mortgage lien, there existed the requisite interference with appellee’s property; and, second, that, the rule should not be applied to a series of unfounded and malicious suits, brought in furtherance of a conspiracy, in the names of third persons as well as of the conspirators. It is obvious that the attempt to foreclose the chattel mortgage caused no seizure of any property. Besides in Johnson v.

King, supra, where there was an actual issuance of an attachment, the failure to seize any property under it was held fatal to the recovery of damages for maliciously suing out the attachment, without probable cause. Under the rule, each suit could be maintained without liability to appellee save for the costs. Judge Gould, speaking for the court in Salado College v.

Davis, supra, said: “In prdinary cases, where no further wrongful act is complained of than the institution of a groundless suit, though done knowingly and with intent to harass, the award of costs is, in contemplation of law, full compensation for the unjust vexation. (Cotterell v. Jones, 73 Eng. Com.

L. 727.) “In such cases, the defendant recovers his costs ‘but no allowance is made for his time, indirect loss, annoyance, or counsel fees.’ (Sedg. on Dam. 38.) He proceeds: ‘Every defendant against whom an action is “unnecessarily” brought, experiences some injury or inconvenience beyond what the costs will compensate him for.’ This injury or inconvenience results from a resort to the legally constituted tribunals; and it seems to be the policy of the law to content itself with meting out something less than our ideas of natural justice would demand, rather than to increase the risks attending and discouraging such a resort, and at the same time add to the difficulties and intricacies of ordinary litigation.” If it is not an actionable wrong for one person to bring an unfounded suit, to harass a defendant and extort money from him, it cannot be actionable for two or more to join in the same sort of suit.

The single actor is certainly no less culpable when he proceeds alone and the injury is the same when be acts alone or with others. As long as the law makes the imposition of the costs the sole penalty for the wrongful prosecution of civil litigation, without seizure of person or property, no greater penalty can be rightly imposed for a series of wrongful suits of that character than the imposition on the wrongful plaintiff of the accumulation of costs in the series of suits. Smith v. Adams, 27 Tex. 30. The sound reasoning of Judge Stayton, in Johnson v.

King, in discussing the opinion of the Supreme Court of Vermont in Closson v. Staples, 42 Vt. 209, 1 Am.

Rep. 316, is conclusive against the contention that' appellee ought to recover because appellants used the names of other parties in some of the suits against her; for Judge Stayton points out that, where Staples caused Burnham to prosecute a suit against Olosson in the name of Burnham on a note which had been paid to Staples, the true foundation for a cause of action in favor of Olosson, against Staples, was his use of an irresponsible person to bring the suit, so as to shield himself from the judgment for costs;, that being the relief which the law affords for such a wrong. 64 Tex. 230.

Here, there is no allegation that any person, whose name was used in the suits against appellee, was not as solvent as appellants, and it is fairly inferable from the petition that all costs were paid by the plaintiffs in the several suits or were adjudged against them alone. We answer that, as held in the original opinion of the Court of Civil Appeals, the petition of appellee presented no cause of action for damages by reason of the mentioned suits. <®=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes