8 So. 364 (Ala. 1890), Baldwin v. Walker

Citation:8 So. 364, 91 Ala. 428
Opinion Judge:CLOPTON, J.
Attorney:Arrington & Graham, for appellant.
Case Date:November 18, 1890
Court:Supreme Court of Alabama

Page 364

8 So. 364 (Ala. 1890)

91 Ala. 428




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...

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