Calhoun v. Hannon

• Decision Date: 20 May 1889
• Citation: 6 So. 291,87 Ala. 277
• Parties: CALHOUN v. HANNON ET AL.
• Court: Alabama Supreme Court

6 So. 291

87 Ala. 277

CALHOUN v. HANNON ET AL.

Supreme Court of Alabama

May 20, 1889

Appeal from city court of Mobile; O. J. SEMMES, Judge.

This action was brought by Joseph C. Calhoun against Hannon &amp Michael, as partners, with their sureties; was founded on an attachment bond, conditioned, in the words of the statute for the payment to defendant of "all such damages as he may sustain by the wrongful or vexatious suing out of said attachment." The attachment was sued out by John E Michael, a partner of said firm, on the ground that the said Calhoun "has fraudulently disposed of his property;" and it was levied on certain real estate in Mobile, including property which the said Calhoun had conveyed by deed to his wife some time before, though the deed was not put on record until the day on which the attachment was sued out. On the trial, defendant having demanded a struck jury, a list of 24 persons was furnished. Before the striking of the jury, plaintiff challenged one of the 24 for cause, and proved to the court that he was a clerk in the employment of Cavanagh, Barney & Co., who had sued out an attachment against plaintiff on the same day, on the same ground, through the same attorney, and under the same circumstances, as the attachment sued out by Hannon &amp Michael; that said attachments were both levied on the same property; and that he sued on the attachment bond of Cavanagh, Barney & Co., in the city court, which suit was pending, and was set for trial on the same day with the present suit. The court refused to allow the challenge, and put the said juror on the venire; to which plaintiff excepted.

The chief point of contention on the trial was the bona fides and consideration of the conveyance executed by plaintiff to his wife, under which defendants justified the suing out of the attachment. Plaintiff testified that the consideration was a debt which he owed his son in 1880, and which the son gave to his mother; that on a settlement between him and his son, in 1883, the amount of this indebtedness being obtained, he executed his note to his wife for the amount, and afterwards, on her request, executed said conveyance in full discharge of the note; that the property conveyed was worth about $10,000. W. H. Leinkauff, one of defendants, who was a surety on the attachment bond, was introduced as a witness for defendants, identified two notes, and was asked by defendants if he held the notes at the time defendants' attachment was sued out. Plaintiff objected to this question, but the court overruled the objection, and allowed the witness to testify that he did. Defendants offered the notes in evidence, and plaintiff objected to their admission, which objection the court overruled. The notes were for $750 each, payable to W. H. Leinkauff & Son. The refusal of the court to allow the challenge of one of the jurors, the several rulings on the pleadings and evidence adverse to plaintiff, the refusal of the charge asked by plaintiff, and the giving of the several charges requested by defendants, are now assigned as error by plaintiff.

G. L. & H. T. Smith, for appellant

Watts & Son, contra.

McCLELLAN J.

Many of the assignments of error are predicated upon the rulings of the primary court on the sufficiency of pleadings and the admissibility of evidence, having reference solely to the defendants' liability for punitive or exemplary damages. The matters presented by the pleadings in this behalf, and the evidence in support or denial of them, were material only upon the assumption that none of the statutory grounds for the issuance of the attachment existed, and that the writ was therefore wrongful. However malicious and vexatious the suing out of the writ may have been, the plaintiff was not entitled to recover in this action, unless it had been shown its issuance was also wrongful in the sense of not being based upon some one of the facts which authorize a resort to this extraordinary process. In determining this primary question of the rightfulness of a resort to the writ, neither the allegations nor proof in respect to facts, which go only in aggravation or mitigation of the act complained of, can exert any legitimate influence in shaping the issue or on the minds of the jury. There must be an unlawful act before the good or bad faith with which the act was done can become a material inquiry. Bank v. Jeffries, 73 Ala. 183; Jackson v. Smith, 75 Ala. 97.

The verdict was in favor of the defendants. This was a determination that the attachment was rightfully sued out. A different finding could not have been reached or justified by a consideration of any conceivable state of pleadings or proof in regard to malice or vexation. The action of the court on these matters could have had no effect on the verdict; and whatever might have been the conclusion of the jury as to the existence, vel non,...