Collins v. Wheeless

• Decision Date: 22 October 1934
• Docket Number: 31377
• Citation: 171 Miss. 263,157 So. 82
• Court: Mississippi Supreme Court
• Parties: COLLINS v. WHEELESS

157 So. 82

171 Miss. 263

COLLINS v. WHEELESS

No. 31377

Supreme Court of Mississippi

October 22, 1934

Division B

Suggestion Of Error Overruled December 3, 1934.

APPEAL from the circuit court of Hinds county HON. W. H. POTTER Judge.

Action by V. B. Wheeless and another against C. C. Collins. Judgment for named plaintiff, and defendant appeals. Reversed and rendered.

Reversed and judgment here for appellant.

W. H. Cox, of Jackson, for appellant.

The measure of damage, if any, is the same as in any action of replevin.

Thornton v. Gardner, 99 So. 131, 134 Miss. 485; Mars v. Germany, 100 So. 23, 135 Miss. 387; Smith Chev. Co. v. Finch, 117 So. 258, 150 Miss. 854.

The attachment was "brutum fulmen" as to the appellee.

Tebo v. Betancourt, 19 So. 833, 73 Miss. 868.

The judgment is contrary to the law of the case and is against the undisputed evidence in the case.

Tarver v. Lindsey, 137 So. 93, 161 Miss. 379; Tyson v. Utterback, 122 So. 496, 154 Miss. 381; Stanley v. Stevens, 122 So. 755, 153 Miss. 809; Hercules Powder Co. v. Calcote, 138 So. 583, 161 Miss. 860; Y. & M. V. R. v. Green, 147 So. 333.

W. E. Morse, of Jackson, for appellee.

We desire to answer the second point of appellant's brief first, wherein he cites the case of Tebo v. Betancourt, 19 So. 833, 73 Miss. 868. We cite first the case of Buckley v. Van Diver, 12 So. 905, 70 Miss. 622, in which the court held an attorney's fee was recoverable on the attachment bond, that was wrongfully sued out. The case of Roy v. First National Bank, 37 So. 641, was a case that showed the limitation of the Tebo case, in which the court said: "The distinction beween the case of Tebo v. Betancourt, 73 Miss. 868, 19 So. 833, 55 Am. St. Rep. 573, and Buckley v. Van Diver, 70 Miss. 622, 12 So. 905, is that in the former there was no levy of any kind of the attachment writ; there was a levy in this case, and it is controlled by Buckley v. Van Diver."

In the case of Wigginton v. Moore, 113 So. 326, 147 Miss. 169, the court held that the defendant in attachment, under the section of landlord and tenant, where it was necessary to employ counsel, being successful, was entitled to an attorney's fee.

Rollins v. Rosenbaum, 148 So. 384, 166 Miss. 499.

The court has so many times ruled on the question that if the instructions taken as a whole, are construed together, announce the correct rule of law, that is all that is required.

Friedman v. Allen, 118 So. 828; Bass v. Burnett, 119 So. 827; Landrum v. Ellington, 120 So. 444; Carlisle v. Laured, 124 So. 786; Hines Lbr. Co. v. Dickison, 125 So. 93; Waddle v. Southerland, 126 So. 201; Hammond v. Morris, 126 So. 906; Y. & M. V. v. Nelley, 131 So. 101; Westerfield & Weeks v. Callott, 120 So. 153; Harris v. Sims, 124. So. 325; Y. & M. V. v. Wade, 139 So. 403.

The jury was warranted in finding for the appellee.

Tarver v. Lindsey, 137 So. 93, 160 Miss. 379; Tyson v. Utterback, 122 So. 496, 154 Miss. 381; Stanley v. Stevens, 122 So. 755, 153 Miss. 809; Hercules Powder Co. v. Calcote, 138 So. 583, 161 Miss. 860; Y. & M. V. v. Green, 147 So. 333.

OPINION

Griffith, J.

Appellee rented from appellant a store building, including showcase, cash stand, and some other such equipment belonging to the store building and suitable to the operation of a grocery business. Appellee sublet the entire of the leased property to a corporation which thereupon engaged in business therein and therewith. Some time later, appellant sued out an attachment against appellee for rent not due but to become due; and, in obedience to the command of the writ "to distrain the goods and chattels of the tenant," the officer took charge of the store building and the equipment mentioned and looked up the building with its contents. About midday on the next day, appellant released the attachment and it is not now controverted that the attachment was wrongfully sued out.

The entire of the leased premises and equipment had been sublet to the subtenant corporation, as already mentioned, and all the goods levied on belonged to the corporation. Nothing belonging, at the time, to appellee was levied upon. Nevertheless, appellee, jointly with the corporation, thereafter filed his declaration for damages for the wrongful suing out of the attachment. Later the corporation moved that the declaration be dismissed so far as it was concerned as a party thereto, which motion was sustained and the case proceeded with appellee as the sole claimant of damages. The jury returned a verdict for the appellee for one hundred twenty-five dollars attorney's fees, judgment was entered accordingly, and the case has been appealed, presenting the sole question whether attorney's fees were properly recoverable by appellee.

We think the case is ruled by Tebo v. Betancourt, 73 Miss. 868, 19 So. 833, 55 Am. St. Rep. 573, which held that a defendant in attachment, who owned none of the property levied upon under the attachment, cannot maintain a demand for damages on account of the wrongful suing out or levying of the attachment. So in this case, as already stated,...