Alsop v. Lidden
| Decision Date | 28 May 1901 |
| Citation | 30 So. 401,130 Ala. 548 |
| Parties | ALSOP v. LIDDEN. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Henry county; J. C. Richardson, Judge.
Action by O. Alsop against F. B. Lidden. Judgment for defendant. Plaintiff appeals. Reversed.
This action was brought to recover damages for the wrongful and malicious suing out of an attachment by the defendant against the plaintiff, which attachment was levied upon the goods of the plaintiff. The complaint, as amended, contained four counts. In each of the counts it was alleged that the defendant, on December 28, 1898, in behalf of the firm of F B. Lidden & Co., a partnership of which the defendant was a member, made affidavit before a justice of the peace upon which a writ of attachment was sued out and levied upon the property and personal effects of the plaintiff; that in said affidavit it was stated that the plaintiff in the present suit had money, property, or effects, liable to satisfy the debt of the plaintiff in attachment, which he fraudulently withheld; and that this was the ground upon which the writ of attachment was issued. It was then averred that upon the date said attachment was sued out the plaintiff, who was the defendant in attachment, had no money, property, or effects liable to satisfy his debts, which he fraudulently withheld and that no ground in fact existed for the suing out of the attachment against him; that said attachment was wrongfully sued out by the defendant in the present suit, who was the plaintiff in the attachment suit, and without probable cause that by reason of the issuance and levy of said attachment a great deal of damage was done to the reputation of the plaintiff, etc. Wherefore he sued. The third count of the complaint contained substantially the same averments, except that it contained the further averment that prior to the commencement of the present suit the attachment suit of F. B Lidden & Co. against the present defendant was terminated and disposed of. The defendant demurred to the first, second, and fourth grounds of the complaint, among others, upon the ground that it was neither alleged nor shown in either of said counts that the attachment suit had been terminated and disposed of. This demurrer was sustained, and to this ruling the plaintiff duly excepted. The demurrers interposed to the third count were overruled, and issue was joined on the plea of the general issue. On the trial of the cause there was introduced in evidence an affidavit made by the defendant Lidden, in which he stated that O. Alsop had money, property, or effects, liable to satisfy his debts, which he fraudulently withheld. The bond for the attachment and the writ of attachment, with the return thereon, showing that it had been levied upon personal effects and household furniture of the plaintiff in the present suit, were introduced in evidence. The evidence showed that Alsop was indebted to Lidden & Co., which indebtedness was evidenced by a promissory note; that he lived in Gordon, Ala., and had lived there for several years; that on the day the attachment was sued out and levied upon his property he was preparing to move his family to Brewton, Ala.; that he had carried his household furniture and effects to the depot for the purpose of having them shipped to Brewton; that on the morning of the day the attachment was sued out he went to the store of Lidden & Co., and, telling them that he expected to move from Gordon, said that he wished to pay them his indebtedness and asked for his note. The defendant in the present suit, with whom Alsop was talking, was unable to find the note, but offered to give the plaintiff a receipt in full for his indebtedness, and also to give him a bond, with good security, to hold him harmless from any further payment upon said note. The plaintiff, Alsop, declined to agree to this, and said that he would not pay the amount due upon said note if the note was not surrendered to him, unless his attorney, whom he would consult, advised him to the contrary. Thereupon the defendant stated to him that if he did not pay the amount due upon the note at once he would have his household furniture and his personal effects levied upon under a writ of attachment before he left Gordon. The plaintiff then went to consult his attorney, who was in Columbia, a distance of 11 miles from Gordon. While the plaintiff, Alsop, was away from Gordon, the defendant made an affidavit and sued out the writ of attachment, which was levied upon his household furniture, etc. Upon the plaintiff's return to Gordon in the afternoon, he went to the store of the defendant's firm, and offered to pay and did pay to them the amount of the note, taking their receipt...
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...169, 172. 3 See, for example, Nelson v. International Harvester Co. of America, 117 Minn. 298, 304, 135 N.W. 808, 810; Alsop v. Lidden, 130 Ala. 548, 554, 30 So. 401, 403; cf. Mt. Vernon & M. H. S. Co. v. McKenney, 46 App.D.C. 99, 116; Herson v. United States, 65 App.D.C. 86, 87, 80 F.2d 52......
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...as to the actual and inferential malice of the defendants in suing out the same, which should have been submitted to a jury. In Alsop v. Lidden, 30 So. 401, 403, the Supreme Court Alabama defined probable cause for suing out an attachment as follows: 'Probable cause is such a state of facts......
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