Dissenting Opinion
White, J.The burden was on the plaintiffs-appellees to prove, as an element of their cause of action, that defendant-appellant sued out the writ of attachment without probable cause. “This is one of the cases in which a plaintiff must prove a negative.”1
The evidence before the trial court relevant to that issue was not in conflict. It established the following undisputed facts:
1. In January 1961, the Ensleys sold their house on Kessler Boulevard and moved to Watson Road and received mail from Commercial Credit Corporation at that address.
2. Later in January of 1961, the Ensleys purchased a house on Atlantic Boulevard in Fort Lauderdale, Florida and moved their family into that house.
3. On March'10,1961, the general counsel of Commercial Credit Corporation wrote the Indianapolis attorney representing it as follows:
*164“Although you have been advised by their attorney that they have recently changed their domicile to Florida, that may not be so in fact. It would be in order, therefore, to check on this, even if that entails some expense.”
4. In March of 1961, the Ensleys represented to Commercial Credit Corporation in writing:
“I forgot to mention that we have given up our residence in Indiana, and are establishing permanent residence in Florida.”
5. On March 20, 1961, the Indianapolis attorney representing Commercial Credit Corporation wrote the general counsel of Commercial Credit Corporation:
“In addition we shall issue an attachment and put up a bond at the time the suit is commenced, under Bums’ Indiana Statutes 3-501, the first paragraph. In order to better explain why this particular procedure is being followed, I wish to advise that we have in our possession a photostatic copy of a letter from Mr. Ensley directed to Sherwood Blue in which the following quotation is found:
T forgot to mention that we have given up our residence in Indiana and are establishing permanent residence in Florida.’ This letter carries Mr. Ensley’s signature, and in view of all the facts involved, I am convinced with the analysis of Burns’ Indiana Statutes 3-501, its first paragraph, that we are now in a better position to obtain an attachment than we would be if we were to assume that this was his residence or attempt to prove any of the other five necessary allegations of that Section. We feel that with the photostat of this letter, the Court with the filing of our complaint and our bond will immediately issue an attachment against the real estate held here in Marion County by Mr. and Mrs. Ensley.”
6. On April 16, 1961, a representative of Commercial Credit Corporation contacted the Appellees at their residence on Atlantic Boulevard in Fort Lauderdale, Florida.
7. On April 19, 1961 the Ensleys filed a suit for an accounting against Commercial Credit Corporation and serv*165ice was made on Commercial Credit Corporation prior to April 25, 1961.
That evidence could lead reasonable men to but one conclusion : There was reasonable and probable cause for defendant-appellant to believe at the time that it caused appellees’ real estate to be attached, that appellees were non-residents of the state. That was a statutory ground for the attachment2 and it was immaterial that appellant’s attachment affidavit also alleged that appellees were concealing themselves to avoid service of process. Wise v. McNichols (1895), 63 Mo. 141, 144. Evidence of malice is equally irrelevant to the issue of probable cause. Want of probable cause cannot be inferred from the existence of malice. McCasland v. Kimberlin (1885), 100 Ind. 121; Bitting v. Ten Eyck (1882), 82 Ind. 421. The majority finds a conflict in the evidence only because it considers evidence not relevant to the issue.
As we said in Treloar v. Harris (1917), 66 Ind. App. 59, 79, 117 N. E. 975, 981, (in which the alleged malicious prosecution was a civil action for commitment to a mental hospital) “whether there was or was not probable cause turned on the evidence relating to the facts and circumstances affecting appellee’s mental condition of which appellant had knowledge or information at the time he instituted the proceeding. . . .” (Emphasis added.)
And as we said so recently in Cassidy v. Cain (1969), 145 Ind. App. 581, 251 N. E. 2d 852, 857, 19 Ind. Dec. 168, 175 :
“As to the existence of probable cause § 675 of the Restatement of Torts states:
‘One who initiates civil proceedings against another has probable cause for so doing if he reasonably believes in the existence of the facts upon which his claim is based, and [emphasis added]
*166(a) reasonably believes that under such facts the claim may be valid at common law or under an existing statute, or
(b) so believes in reliance upon the advice of counsel given under the conditions stated in § 666.’ ”
Since “probable cause” is a question of what defendant-appellant “reasonably believes”, it is a question which cannot be answered by reciting facts which were unknown to appellant when it initiated the attachment proceedings. If we accept the validity of that self-evident proposition, we thereby eliminate from our consideration such evidence as the testimony of appelles concerning their undisclosed motive for representing to the appellant, by the postscript, that they were no longer residents of Indiana.
Furthermore, that reasoning makes it necessary (when the facts are found specially) that the trial court find that appellant did not reasonably believe that appellees were non-residents when they caused appellees’ real estate to be attached. Such a finding is essential to the conclusion that the attachment was sued out without probable cause. Absent that finding of fact, the special'findings are insufficient to sustain the legal conclusion of want of probable cause. And the undisputed evidence in this case is quite obviously insufficient to sustain á negative finding that appellant did not reasonably believe3 that appellees were non-residents.
Because appellees failed to prove want of probable cause, and for that reason alone, I would reverse the judgment. On the questions of damages and statute of limitation, I concur in the result reached but not in the reasoning by which the result was reached, particularly with respect to the statute of limitations.
The majority opinion rejects Levering v. National Bank of Morrow County (1912), 87 Ohio St. 117, 100 N. E. 322, as *167authority on the premise that an appeal to this court is in the nature of the “statutory appeal” which Levering distinguishes from a “proceeding in error”. In my opinion appeals to this court and to the Indiana Supreme Court are essentially proceedings in error, as the distinction is drawn in Levering.4 On pure “theory” Levering seems to me unassailable, but to adopt its rule would often lead to harsh and unjust results. Furthermore, I believe the weight of authority is to the contrary.5
Note. — Reported in 264 N. E. 2d 80.
. Terre Haute and Indianapolis Railroad Co. v. Mason (1897), 148 Ind. 578, 581, 46 N.E. 332, 333.
. Acts 1881 (Spec. Sess.), ch. 38, § 197, p. 240, Burns IND. STAT. ANN. § 3-501. See also Trial Rule 64 (B).
. The appellant is a corporation and language which speaks of what appellant did or did not know or believe obviously refers to imputed or constructive knowledge or belief.
. See Sunderland, The Proper Function of an Appellate Court, 5 Ind. L.J. 483, 494; Curless v. Watson (1913), 180 Ind. 86, 90, 102 N.E. 497.
. See Annotation 41 A.L.R. 2d 865.