First Nat. Bank v. Cheney

• Decision Date: 23 June 1898
• Citation: 23 So. 733,120 Ala. 117
• Parties: FIRST NAT. BANK OF ANNISTON v. CHENEY.
• Court: Alabama Supreme Court

23 So. 733

120 Ala. 117

FIRST NAT. BANK OF ANNISTON v. CHENEY.

Supreme Court of Alabama

June 23, 1898

Appeal from city court of Anniston; James W. Lapsley, Judge.

Action by A. D. Cheney against the First National Bank of Anniston. There was a judgment for plaintiff, and defendant appeals. Affirmed.

This action was brought to recover $4,000 for the breach of the conditions of a bond made by the defendant, and payable to the plaintiff, in the sum of $4,452.42, which bond was conditioned as follows: "That whereas, the above-bounden First National Bank of Anniston has this day prayed for and obtained an attachment against the estate of said A. D Cheney for the sum of twenty-two hundred and twenty-six 2/100 dollars, returnable to the city court of Anniston: Now, if the said First National Bank of Anniston shall prosecute said attachment to effect, and pay the said defendant all such damages and costs as he may sustain by the wrongful or vexatious suing out of such attachment, then this obligation to be void; otherwise, to remain in full force and effect." And plaintiff alleged "the condition of said bond has been broken, in this: that said A. D. Cheney was not indebted to said First National Bank of Anniston at the date of the suing out of said attachment, and said bank has failed to pay the plaintiff the following special damages, which he suffered by reason of the wrongful suing out of said attachment, to wit." Then follows the enumeration of the special damages suffered by the plaintiff the fourth and sixth assignments of damages being as follows "(4) The sum of one thousand dollars damage which plaintiff suffered to his credit, in this: that, prior to and up to the suing out of said attachment, plaintiff enjoyed a good credit in commercial circles and with the public generally, which said credit was destroyed by the suing out of said writ." "(6) The sum of one hundred dollars for the loss of his time and necessary traveling expenses and hotel bills which plaintiff was compelled to incur and pay while attending the court and defending said attachment suit." This action was instituted on April 28, 1896. On June 2, 1896, the defendant moved to strike the fourth and sixth assignments of damages from the complaint, on the ground that the damages were too remote, and were not such as could be recovered in this action. On October 3, 1896, the defendant moved the court to dismiss the suit of the plaintiff, because the plaintiff was a nonresident of the state of Alabama, and was so at the time of the bringing of the said suit, and has not given security for costs. On October 8, 1896, the court overruled this motion to dismiss for the want of security for costs, and the defendant duly excepted. On October 12, 1896, the court overruled the defendant's motion to strike the fourth and sixth assignments of damages from the complaint, and to this action the defendant duly excepted. The defendant demurred to the complaint, upon the following grounds: "(1) It does not appear from the complaint that it has been adjudged by any court of competent jurisdiction that said A. D. Cheney was not indebted to said First National Bank of Anniston. (2) Said complaint fails to aver that the court having jurisdiction of said attachment suit has decided that said A D. Cheney was not indebted to said First National Bank of Anniston at the date of suing out of said attachment. (3) For aught that appears in said complaint, said attachment suit is still pending and undecided, and the indebtedness vel non of said A. D. Cheney to said bank is still undecided." This demurrer was overruled, and the defendant duly excepted. The defendant then filed the following special pleas "First. That the original suit of the First National Bank vs. A. D. Cheney, in which the indebtedness vel non of A. D. Cheney to said bank was raised and put in issue, is still undecided and undisposed of, and that the same is now pending in the supreme court of Alabama; and hence this court cannot entertain a suit on an attachment bond in which the only breach of the bond is that the attachment was wrongfully sued out, because the plaintiff was not indebted to the defendant, when the fact is being adjudicated in another suit in another court. Second. While it is true the city court of Anniston decided in the main suit of the First National Bank vs. A. D. Cheney that said A. D. Cheney was not indebted to said bank, said decision and judgment has been duly and legally appealed by said bank to the supreme court of Alabama, where the case was transferred, and where it has been argued and submitted and is now pending, awaiting a decision from said supreme court; and this court has no jurisdiction to entertain this suit on said bond, where the only breach of the bond is a denial of the indebtedness, when that fact is in litigation in another suit, and in another court of competent jurisdiction. Third. The fact of the indebtedness vel non of A. D. Cheney to said First National Bank is directly involved and put in issue in the attachment suit of the First National Bank vs. A. D. Cheney, begun in this court, but which is now pending in the supreme court of Alabama, to which court it was duly and legally appealed and transferred by said bank. Said case has been submitted to the supreme court of Alabama, and has been argued by counsel, but has not yet been decided, and defendant pleads the...