Painter v. Munn

• Decision Date: 27 January 1898
• Citation: 23 So. 83,117 Ala. 322
• Parties: PAINTER ET AL. v. MUNN ET AL.
• Court: Alabama Supreme Court

23 So. 83

117 Ala. 322

PAINTER ET AL. v. MUNN ET AL.

Supreme Court of Alabama

January 27, 1898

Appeal from circuit court, Dale county; J. M. Carmichael, Judge.

Action by Dan Munn and others against W. R. Painter and others to recover damages for the wrongful suing out of an attachment. From a judgment for plaintiffs, defendants appeal. Reversed.

On the 27th day of November, 1894, J. S. Reeves & Co., a nonresident partnership, through their agent, made affidavit that appellees, Dan Munn, George Munn, and Tom Edwards, partners doing business under the firm name of Edwards & Munn Bros were justly indebted to the said J. S. Reeves & Co. in the sum of $1,461.81, by note and account, and also $75 attorney's fees on said note, and that said Edwards &amp Munn Bros. were about fraudulently to dispose of their property, and that said attachment was not sued out for the purpose of vexing, etc. The said J. S. Reeves & Co., at the same time, executed an attachment bond in which said J. S Reeves & Co. were principals, and the appellants, W. R Painter, W. L. Casey, and H. M. Sessions, their sureties on said bond, in which said bond appellants, together with J. S Reeves & Co., acknowledged themselves "held and firmly bound unto Dan Munn, George Munn, and Tom Edwards, partners doing business under the firm name and style of Edwards & Munn Bros., in the sum of $3,123.62, to be paid to the said Dan Munn, George Munn, and Tom Edwards, and to said Edwards & Munn Bros., their heirs," etc., the same being a regular attachment bond, under the statute; and, upon said bond and affidavit being filed, said clerk issued out of said circuit court a writ of attachment, commanding the sheriff to attach so much of the estate of Dan Munn, George Munn, and Tom Edwards, and Edwards & Munn Bros., as should be of value sufficient, etc., the same being in all respects a regular writ of attachment, under the statute. On the said 28th day of November, 1894, said writ of attachment was levied upon certain goods of the firm of Edwards & Munn Bros. The goods so levied upon were replevied by appellees, who gave a regular statutory replevin bond for the same, with B. H. Jennings, R. D. Reynolds, and William Garner as sureties. The goods were then delivered to appellees. Appellees then sold out the goods, converted the same into money, and, after judgment had been rendered against them in said attachment suit, they and their said sureties took said money, the proceeds of said goods, and turned it over as a payment on the judgment or bond, in payment thereof, as they were bound to do under the conditions of said bond. The value of the goods levied upon and replevied is admitted by the appellants in this case to be $1,581.68, and the same is admitted by appellants to have been the amount turned over by the principal and sureties on the replevin bond from the sale of the goods, after judgment had been levied in said attachment suit. On the 29th day of August, 1895, appellees filed their complaint in this cause, and on the 5th day of September, 1895, filed, by leave of court, an amended complaint, upon the first count of which amended complaint this cause was tried, the second count of said amended complaint being withdrawn. This suit is against the appellants, as sureties on said attachment bond, on the ground that said attachment was wrongfully sued out, and claims of the defendants as damages for the breach of the condition of said attachment bond. In said first count of the amended complaint, upon which this suit was tried, the breach of the condition of the attachment bond, the foundation of this suit, was alleged as follows: "And plaintiffs say that the breach of the conditions of said bond has occurred, in this: that the said attachment was wrongfully sued out, in this: because the said Dan Munn, George Munn, and Tom Edwards, partners doing business under the firm name of Edwards & Munn Bros., the defendants in said attachment suit, were not about fraudulently to dispose of their property, as alleged in the affidavit of said attachment suit, and said defendants have not paid plaintiffs all such damages as they sustained by reason of the wrongful suing out of said attachment, to wit,"-then setting out the damages claimed. The defendants demurred to the first count of the complaint, the grounds of which demurrer are sufficiently stated in the opinion. The court overruled this demurrer, and the defendants duly excepted to such ruling. The defendants then pleaded, in short, by consent, the general issue of not guilty, and several special pleas, which were as follows: (1) That plaintiffs were about fraudulently to dispose of their property. "(2) That at the time said attachment set out in the complaint was sued out plaintiffs owed said J. S. Reeves & Co. $1,561.81, which was then just due; that plaintiffs were demanding settlement, and that in consideration of said indebtedness, and an agreement between the plaintiffs and said J. S. Reeves & Co. to that effect, plaintiffs consented for said J. S. Reeves & Co. to sue out an attachment for said sum, and have the same levied on plaintiffs' property, for the purpose of speedily collecting said indebtedness; and that said attachment was sued out and levied pursuant to the said agreement, and that plaintiffs are estopped from this suit for damages for the suing out of said attachment." "(4) For answer to so much of the first count of the complaint as [to] the value of the property levied on under said attachment, defendants say that at the time the attachment suit set out in the complaint was begun the plaintiffs owed J. S. Reeves & Co. $1,561.81; that the goods levied on were replevied by plaintiffs, and by them sold a short time after the levy of said attachment, and the proceeds applied to the payment of said indebtedness; and that plaintiffs have had the benefit of the full value of said goods and property levied on under said attachment." The plaintiffs demurred to the fourth plea, upon the grounds that the facts set forth therein could not be considered in mitigation of damages. This demurrer was sustained, and the defendants duly excepted. Issue was then joined on the plea of the general issue and the first and second special pleas.

The attachment bond upon which this suit is founded, together with the whole original file in said attachment suit including the sheriff's return of the levy of said attachment, were introduced in evidence. It was proved by plaintiffs, without contradiction, that the writ of attachment sued out by J. S. Reeves & Co. against Edwards & Munn Bros. was levied by the deputy sheriff of Dale county upon a part of the stock of goods of Edwards & Munn Bros. It was admitted by defendants in this suit that the goods so levied upon in the attachment suit were worth $1,581.68, and that said sum of money was the amount paid over by the principals and sureties on the replevin bond from the sale of the goods attached, in part payment of the jurgment in said suit. Plaintiffs then showed by the evidence of Dan Munn that the firm of Edwards & Munn Bros. was composed of the said Dan Munn, George Munn, and Tom Edwards; that, at the time the attachment referred to in the complaint was sued out in favor of J. S. Reeves & Co. against plaintiffs in this suit, the firm of Edwards & Munn Bros. was engaged in the mercantile business in Ozark, Ala., and was buying and selling goods in the usual and ordinary course of trade, as merchants; that they had sold no goods at less than cost, and had disposed of no goods otherwise than in the usual and ordinary course of trade; that the firm of Edwards & Munn Bros. had a good credit, and had never been refused credit; and that the attachment destroyed the credit of the firm. Witness Dan Munn testified that he did not, at any time, consent for said attachment to be sued out, but positively refused to agree to the same. George Munn testified to substantially the same that Dan Munn had testified to, except that he (George Munn) consented for said attachment to be sued out, provided the other two partners, Dan Munn and Tom Edwards, were willing for the same to be done. At the time said attachment was sued out the liabilities and assets of the firm of Edwards & Munn Bros. were as follows: That said firm had on hand $4,235 in goods, at invoice price, which were worth from 66 2/3 to 70 cents on the dollar; that the firm had about $1,500 in accounts, notes, and mortgages; that said accounts, notes, and mortgages were worth about 75 cents on the dollar; that the firm at the time of the attachment owed about $4,900. The evidence showed, without conflict, that two of the partners, Dan Munn and George Munn, each owned individually a one-fourth interest in a tract of land of 200 acres, lying in Dale county; that this was all the land that either Dan Munn or George Munn owned; that they did not live on the land; that this land was the individual property of said Dan Munn and George Munn; that about three weeks before this attachment was levied Dan Munn and George Munn each executed a deed to his wife to his interest in said lands, upon the recited consideration of love and affection. These deeds were never recorded, nor were they ever delivered to their wives, nor to any one for them, but they were retained in the possession of said George Munn and Dan Munn till said attachment was levied, and have never been delivered to their wives. The evidence also showed, without conflict, that Tom Edwards, before the partnership of Edwards & Munn Bros, had ever been formed, sold to his sister certain lands, to be paid for in partial payments; that on the day before this attachment was levied his said sister finished paying for said lands, and he thereupon, on the following day, executed to her a deed to the...