Bradford v. Lawrence

• Citation: 90 So. 809,18 Ala.App. 138
• Decision Date: 10 May 1921
• Docket Number: 7 Div. 696
• Parties: BRADFORD et al. v. LAWRENCE.
• Court: Alabama Court of Appeals

90 So. 809

18 Ala.App. 138

BRADFORD et al. v. LAWRENCE.

7 Div. 696

Court of Appeals of Alabama

May 10, 1921

Appeal from Circuit Court, Randolph County; S.L. Brewer, Judge.

Action by Hamp Lawrence against Joseph Bradford and his surety on an attachment bond. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

A motion was made in this court to dismiss the appeal because J.F. Bradford, a codefendant, has failed to perfect his appeal by signing a supersedeas bond or giving security for cost, and because appeal was taken by Joseph Bradford alone, and no summons has been issued to J.F Bradford to appear and unite if he sees proper, and because there is joint assignment of errors, and J.F. Bradford is not a party to said appeal and because Joseph Bradford has not obtained leave of court to assign errors separately.

The action was for the breach of an attachment bond and its conditions, the bond being set out in the complaint, and it is averred that plaintiff employed counsel to defend said suit, and that he did defend said suit, and that a reasonable attorney's fee is $500, and that, in addition to the fee he has paid or agreed to pay the sum of $125 to his counsel as expenses for attending court. Plaintiff avers that the condition of the attachment bond was breached by the defendant: First, no statutory grounds existed for the issuance of said attachment at the time it was issued second, said attachment was wrongfully sued out; third, said attachment was maliciously sued out; fourth, said attachment was vexatiously sued out; fifth, because there was no probable cause for believing that any grounds for attachment existed at the time said attachment was sued out. Plaintiff further avers that said attachment writ was wrongfully levied on the property hereinabove set out by the sheriff; that said property was sold by the sheriff at less than it value; that said property was reasonably worth $800; and that plaintiff has paid out a large amount of costs, to wit, more than $200, because of the wrongful or vexatious suing out of the attachment, which he claims as damages in this suit. Plaintiff also avers that said damages, and no part thereof, has been paid, and that the said attachment suit has been tried in the circuit court of Randolph county, and the said writ of attachment quashed.

Charge 2 refused to the appellant is as follows:

"In this case, if the jury believe the evidence, the jury cannot award any damages in favor of the plaintiff for the loss of credit."

The following is charge 4:

"The jury is charged that the judgment offered in evidence in this case of August 19, 1919, is conclusive of the amount at that time due from Hamp Lawrence, the plaintiff here, to Joseph Bradford, the defendant here, and the jury cannot look behind that judgment to ascertain what amount of indebtedness is due from Hamp Lawrence to Joseph Bradford."

Charge 3 is as follows:

"If the jury believe the evidence in this case, they cannot allow the plaintiff any credit for the $231.46 received by Joseph Bradford after the attachment was sued out and prior to the rendition of the judgment in favor of said Joseph Bradford against Hamp Lawrence, rendered on August 19, 1919, said judgment being the one offered in evidence in this case."

N.D. Denson & Sons, of Opelika, and Lackey, Pruitt & Glass, of Ashland, for appellants.

Walter S. Smith, of Lineville, for appellee.

MERRITT, J.

Appellee argues that the appeal in this case should be dismissed, but there is nothing in the record to indicate a submission on motion to dismiss. It may be stated however, that the record discloses the appearance in this court of one of the attorneys of record in the trial court for the defendant, who did not join in the appeal, and the waiver by such attorney of notice of summons as is provided for by Acts 1911, p. 589. The purpose of the act is to require notice to the defendant, who does not join in the appeal, to do so if he desires, and the waiver thereof by the attorney, on whom the act specifies the notice may be served, is sufficient. The supersedes bond executed by the appellant taking the appeal is ample to protect the appellee to the extent of the full amount of any judgment that may be rendered in his favor.

Joseph Bradford, one of the appellants, instituted a suit in the circuit court of Randolph county to recover of Hamp Lawrence the appellee, the sum of $809 alleged to be due by account and certain described promissory notes. At the time of the filing of this suit appellant, Joseph Bradford, made affidavit alleging that the appellee was his tenant; that he was indebted to appellant in an amount of money due or to become due, and that he was removing his property from the rented premises without the consent of the affiant, or otherwise disposing of a part or all of the crop without first paying all rents and advances, and that appellee had refused to pay on demand. Thereupon a writ of attachment was issued by the clerk of the court and delivered to the sheriff, commanding him to attach so much of the estate of the appellee as would be sufficient to satisfy the debt and cost according to the complaint. The attachment was levied on certain personal property of the appellee, described in the sheriff's return, consisting of mules, corn, fodder, etc. At a subsequent term of the court, the...