This is an action for damages for procuring the issuance of an attachment and levy thereunder without probable cause and with malice. It seems to be founded upon the principles found in the case of Slaughter v. Nolan et al., 41 S.D. 134, 169 N.W. 232. The action is not upon the attachment bond, but is rather in the nature of a suit to recover damages for malicious prosecution.
The plaintiff herein successfully defended against the attachment proceedings in this court in First Nat. Bank v. Kirby,62 S.D. 489, 253 N.W. 616. The facts therein disclose the foundation of the proceedings in the present case. This court in that opinion held that the order dissolving the attachment on the merits was conclusive and that the order made setting aside and releasing the attachment become final, and that the granting of a rehearing of that order was of no force and effect.
The question on this appeal seems to be whether or not there was sufficient evidence on the question of probable cause to justify *Page 405 its submission to the jury. Attachment is an extraordinary remedy, and, if recklessly used, there is grave danger of damaging the party and property against whom the writ of attachment is directed. It would seem that the reason for the giving of the bond provided for by statute is to secure against the reckless issuing of this extraordinary remedy. However, in this case, the plaintiff has not proceeded by a suit for damages under the bond, but has proceeded under the theory of Slaughter v. Nolan et al., supra, and predicated his action on malice and want of probable cause. An examination of the record indicates a fair and impartial trial. The rulings of the trial court on the admission and rejection of evidence were not prejudicial. The instructions to the jury were fair, clear, and concise, and clearly stated the law upon the theory that the case was tried.
We have examined the evidence carefully in order to determine the question of whether there was probable cause for issuing the attachment on the grounds alleged in the affidavit. We believe that, in the light of the record, it was a question for the jury. It was not a question of whether there was in fact legal grounds for an attachment, but rather one of good faith by the officers of the defendant bank. Courts and text-writers differ as to the meaning of the term "probable cause." This court has on previous occasions expressed its views thereon, which have a direct bearing upon the issues before us. In deciding the peculiar facts before us, we believe that the author of the monographic note in Michael v. Matson, 81 Kan. 360, 105 P. 537, found in L.R.A. 1915D, at page 3, very aptly states the rule of law which should be applied to the facts in this case, as follows:
"Probable cause being thus so essentially a question of fact, and such questions being, under our system of jurisprudence, so properly for the determination of the jury, rather than the judge, who, as a rule is to determine only questions of law, it would seem, therefore, that the question of probable cause is naturally and logically a question for the determination of the jury. If it is not so determined, its position in our system of laws is plainly anomalous, — a thing which should not be without good and substantial reason. It is the theory of our law, and the practice generally, that twelve jurymen, themselves presumed to be reasonable men, *Page 406 are better fitted to decide what was the proper conduct for a reasonable man in a particular case than the judge, as the question is: what would a reasonable or ordinarily prudent man have done under the circumstances; and not what one learned in the law, as the judge is supposed to be, would have done. And as has already been noticed, it is just this question of the proper conduct of a reasonable man that is involved in the determination of the question of probable cause."
In a suit for damages for wrongful levy of attachment, in Slaughter v. Nolan et al., supra, this court held that the court did not err in refusing to direct a verdict, and said: "The trial court did not err in refusing to direct a verdict, yet whether there was sufficient evidence to prove malice and want of probable cause was a question that should have been left for the decision of the jury, unless respondent's further contention is sound — an action, not upon the attachment bond, will lie for a wrongful attachment even though there was probable cause for the attachment or even though the attachment creditor was not actuated by malice in causing the attachment."
In Jackson v. Bell, 5 S.D. 257, 58 N.W. 671, we held that conflicting evidence as to probable cause should be tested and determined by the jury under proper instructions as to what facts if they existed, constituted probable cause. We think it was a jury question in this case.
The question of consulting and seeking the advice of counsel is presented. We have therefore examined the record, and it appears that the attorney consulted was a director of the defendant bank and its general attorney. In Larson v. Johnson, 43 S.D. 223, 178 N.W. 876, we held that questions as to the extent of a party's communication to counsel of all the facts were questions to be determined by the jury. See Shong v. Stinchfield et al., 47 N.D. 495, 183 N.W. 268. In L. Bucki Son Lumber Co. v. Atlantic Lumber Co. (C.C.A.) 121 F. 233, 245, the court considered the advice of counsel in suing out an attachment where the counsel was a director and secretary of the defendant's company, and held that on account thereof the issue of malice became peculiarly one for the jury, and we quote: "We understand that the question of advice of counsel in instituting and prosecuting a *Page 407 suit goes to affect the question of malice, which, in suits of this kind, is a question for the jury; but in relation to this particular case we deem it proper to say that the question was one particularly for the jury, because the counsel whose advice was alleged to have been given and taken was a director and secretary of the lumber company, and it is, to a certain extent, the question of a person advising himself in his own interest. We think it reasonably clear that a lawyer `learned in the law' cannot advise himself as to the right and propriety of suing out an attachment, and, when prosecuted for suing it out maliciously, rebut all malice by showing that he advised himself. As to the effect to be given to the advice of interested counsel, see Watt v. Corey and Ricken, 76 Me. 87; Charles City Plow Manufacturing Co. v. Jones Co., 71 Iowa 234, 238, 32 N.W. 280." See Wuest et al. v. American Tobacco Co., 10 S.D. 394, 73 N.W. 903; Watt v. Corey, 76 Me. 87, and Hearn v. Batchelor, 47 Ga. App. 213, 170 S.E. 203.
We think there was a jury question in this case, and we see no useful purpose in commenting on and setting forth the evidence which we think is sufficient to sustain the verdict. We have carefully examined all of the alleged errors, but are of the opinion that there is no prejudicial error in the record, and that the appellant had a fair and impartial trial.
The order and judgment appealed from are affirmed.
CAMPBELL and ROBERTS, JJ., concur.
POLLEY, P.J., and RUDOLPH, J., dissent.