Baldwin v. Walker

• Decision Date: 18 November 1890
• Citation: 8 So. 364,91 Ala. 428
• Parties: BALDWIN v. WALKER.
• Court: Alabama Supreme Court

8 So. 364

91 Ala. 428

BALDWIN v. WALKER.

Supreme Court of Alabama

November 18, 1890

Appeal from circuit court, Montgomery county, JOHN P. HUBBARD Judge.

Action by Ida S. C. Walker against A. M. Baldwin, as surety on an attachment bond. On and before March 29, 1888, plaintiff was indebted to the Empire Paper Bag Company. This indebtedness had been contracted by her husband, who was, at that time and for some time before, dead; and after his death she carried on his business until she failed, and made a deed of trust to secure a preferred creditor. The Empire Paper Bag Company, not being paid their debt, sent one Crane to Montgomery, as their agent, to see about this debt, and settle the matter; but did not give the said Crane instructions to sue out an attachment. In obedience to the instructions of the said Empire Paper Bag Company, the said Crane came to Montgomery, and upon inquiry found that the said Ida S. C. Walker has failed in business, and made a deed of trust in favor of one of her creditors of her business her stock of goods, store-house, and other assets in the business; and was told by either her brother or brother-in-law that she was offering her home place for sale and was preparing to move to Philadelphia. Upon this information, said Crane consulted a lawyer, and was advised by the attorney to sue out a writ of attachment. Thereupon the attorney telegraphed the Empire Paper Bag Company to furnish him with security on which to make an attachment bond. In response to this telegram of the attorney, the Empire Paper Bag Company secured the defendant in this suit, A. M. Baldwin, to become a surety on an attachment bond, by depositing with him $2,500. The affidavit for the attachment was made by the said Crane as the agent of the Empire Paper Bag Company, and the bond was made by the said Crane signing it for the said company, and said A. M. Baldwin also signing it as a surety thereon. In the attachment suit, against the said Ida S. C. Walker, the Empire Paper Bag Company recovered a judgment against her, and the property levied on under the writ of attachment was sold in payment of the judgment. The said Ida S. C. Walker now brings this action against the said Baldwin, as a surety on the said attachment bond, and alleges as a ground of recovery that the attachment was sued out wrongfully and vexatiously, and the bond thereby broken. On the trial of the case in the lower court, when the plaintiff introduced in evidence the deposition of the plaintiff, taken as required by statute, the defendant objected to the following excerpts from the plaintiff's answer to the second cross-interrogatories: "But never intended making Philadelphia, or any other place than Montgomery, my home." "I had no intention of ever leaving or abandoning Alabama;" "for I was not going there to reside, but to visit my mother." "Since I became a housekeeper, a number of years ago, have never had any intention of removing from the state of Alabama." "May husband's remains are buried here." "My most cherished associations for years past have been here." "No other place has or has had the same attractions for me." "All else I can say is, while my husband's relations reside in Philadelphia, and wanted his remains brought there, I brought them here that I might live here with our children without regret." The court overruled the defendant's objection and motion to strike out of the answer each of these separate parts of the plaintiff's answer, whereupon the defendant duly excepted. The plaintiff introduced in evidence, against the objection and exception of the defendant, her claim of exemption to a part of the money for which her house and lot were sold by the administrator of her husband's estate for the payment of the debts of her husband. The plaintiff also proved against the objection and exception of the defendant, that the attorney of the Empire Paper Bag Company had said that they were going to contest her claim of exemptions; and that, on being told by a witness for the plaintiff that the contest would put the plaintiff to a great deal of trouble, if she was kept out of her exemption, the said attorney remarked that she, the plaintiff, had brought an unjust suit against his client. The defendant moved to exclude all this testimony, but the court overruled his motion, and he thereupon duly excepted. In this connection, the court charged the jury "that they could not look to this testimony as showing malice, when they found from the testimony that said attorney was then representing the Empire Paper Bag Company; that then they could look to these facts simply as showing light on the question of malice in suing out the attachment." The plaintiff also introduced M. B. Wharton as a witness, who testified that he was boarding with the plaintiff at the time the attachment was sued out, and that she, the plaintiff, told him, both before and after the attachment was sued out, that he need not feel uneasy about her going away, as she was only going to Philadelphia on a visit. The defendant moved to exclude this testimony of the said witness, but the court overruled his objection, and the defendant thereupon duly excepted. In this connection, however, the court charged the jury "that they could only consider the acts and declarations of plaintiff prior to the time the attachment was sued out." There was a verdict and judgment for plaintiff, and defendant appeals.

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