Dickerson v. Schwabacher

• Decision Date: 16 May 1912
• Citation: 58 So. 986,177 Ala. 371
• Parties: DICKERSON v. SCHWABACHER.
• Court: Alabama Supreme Court

58 So. 986

177 Ala. 371

DICKERSON v. SCHWABACHER.

Supreme Court of Alabama

May 16, 1912

Appeal from City Court of Bessemer; J. C. B. Gwin, Judge.

Action by Thomas Dickerson against U. Schwabacher for malicious abuse of process. Judgment for defendant, and plaintiff appeals. Affirmed.

The complaint is as follows: "Plaintiff claims of defendant the sum of $10,000 as damages, and as his cause of action alleges that the defendant, upon his affidavit and his bond had issued from the justice court of E. H. Lopez a writ of garnishment against this defendant, and levied upon the Bessemer National Bank of Bessemer, Ala., on, to wit, the 8th day of June, 1910, and placed in the hands of J. L Mattingly, constable of precinct 32 of Jefferson county Ala., and which was levied upon the plaintiff's money or account of said Bessemer National Bank of Bessemer, Ala which said money or account was the property of the plaintiff; and the plaintiff avers that the defendant sued out said writ of garnishment, and willfully, wrongfully knowingly, and maliciously caused same to be levied upon the property or money of the plaintiff kept in possession or on deposit with the said Bessemer National Bank, and did cause the said Bessemer National Bank to refuse to honor his checks issued against the said account or deposit with the said Bessemer National Bank, caused the said bank to take from his account or deposit and pay over to the said justice, E. H. Lopez, the sum of $8.50, and willfully, knowingly, wrongfully, and maliciously collected from said justice of the peace the sum of $6 without having any judgment rendered against the plaintiff, or service as required by law served upon the plaintiff, who was described in the process and summons as Tom Dickerson, defendant, willfully, knowingly, and wrongfully and maliciously collecting said sum from said justice on the said garnishment aforesaid without service or process of any kind or character, thereby, and owing to said writ of garnishment, willfully, knowingly, wrongfully, and maliciously caused the credit of the plaintiff to be injured, caused him mental anxiety, inconvenience, chagrin, humiliation, and worry, and deprived him of the sum of $8.50 of his money or property." The demurrers were that the averments were inconclusive, the complaint multifarious, it states no cause of action, it does not sufficiently set out the affidavit and bond, and, for aught that appears, it seeks to make this defendant liable for the acts of another over whom he had no control, and because the complaint fails to set forth or allege facts showing wherein the defendant acted wrongfully or maliciously.

The second count is as follows: "Plaintiff claims of defendant the further sum of $10,000 as damages, and avers that defendant, upon his affidavit, and upon his executing a bond, procured and had issued from the justice court of E. H Lopez, in precinct 33 of Jefferson county, Ala., a writ of garnishment, which was directed against the Bessemer National Bank as garnishee in said suit, and which issued on, to wit, June 8, 1910, and which was placed in the hands of the constable of said precinct 33, and said writ of garnishment served and executed upon the said Bessemer National Bank, of the city of Bessemer, Ala., by the said constable; and plaintiff avers that at said date, and at the time of the executing of said writ of garnishment, plaintiff had on deposit with said bank money or property, and said bank was indebted to the plaintiff on open account. And plaintiff avers that defendant procured and had paid to him the sum of $6 in money from the said Bessemer National Bank, through said justice court, without having summoned, served, or executed upon the plaintiff, and without having necessary judgment rendered and directed against the said Bessemer National Bank and this plaintiff, as required by law. And plaintiff avers that the defendant collected and had paid to him the plaintiff's money from said bank aforesaid, and through said justice court aforesaid, willfully, knowingly, wrongfully, without service or execution of summons upon the plaintiff, and without and in the absence of a judgment of condemnation against the said garnishee, and without judgment against this plaintiff for any sum; and the plaintiff avers defendant used and had issued the said process of garnishment writ willfully, knowingly, and wrongfully, for the purpose of collecting and taking from this plaintiff his money or property, and to the damage of plaintiff in this: He was deprived of $8.50 of the money he had on deposit, or was owing him, by the said Bessemer National Bank. He was greatly humiliated and chagrined by having his money taken in...