Goldstein v. Drysdale

• Decision Date: 27 November 1906
• Citation: 148 Ala. 486,42 So. 744
• Parties: GOLDSTEIN v. DRYSDALE.
• Court: Alabama Supreme Court

42 So. 744

148 Ala. 486

GOLDSTEIN v. DRYSDALE.

Supreme Court of Alabama

November 27, 1906

Appeal from City Court of Selma; J. W. Mabry, Judge.

Action by Fannie Drysdale against Charles Goldstein. From an order granting plaintiff a new trial, defendant appeals. Affirmed.

The action was one for willfully, fraudulently, and maliciously causing an attachment to be issued and levied upon certain property of the plaintiff to satisfy a debt due by another party.

A. D Pitts and Pettus & Jeffries, for appellant.

Craig &amp Craig and W. W. Quarles, for appellee.

ANDERSON J.

Conceding that the special pleas to counts 2 and C were proven beyond dispute, the defendant was not entitled to the general affirmative charge as to the whole complaint, unless the plaintiff was not entitled to recover under the other counts. The other counts are not upon the bond for the mere wrongful suing out of the attachment, but are in case for a wrongful malicious, and without probable cause suing out of the attachment, and in like manner causing the same to be levied. Plaintiff cannot therefore, recover under said counts, if the attachment was only wrongfully sued out, but must prove that it was sued out wrongfully, maliciously, and without probable cause. Brown v. Master, 104 Ala. 451, 16 So. 443. The attachment was sued out to enforce the collection of certain notes signed by Fannie Drysdale and her husband and payable to the defendant, Goldstein. There was judgment in favor of said Fannie Drysdale, from which it does not appear that an appeal was taken. The judgment was, therefore conclusive that the debt for the collection of which the attachment was sued out was not owing by Mrs. Drysdale, the plaintiff in the present suit, and was, therefore, wrongfully sued out as to her. City Nat. Bank v. Jeffries, 73 Ala. 183; Stewart v. Cole, 46 Ala. 646. The plaintiff having shown that the attachment was wrongfully sued out, it was for the jury to determine whether or not it was done maliciously and without probable cause. Alsop v. Lidden, 130 Ala. 548, 30 So. 401; Lunsford v. Deitrich, 93 Ala. 565, 9 So. 308, 30 Am. St. Rep. 79.

Appellant insists that the complaint claims in the conjunctive, not only for the wrongful and malicious suing out of the attachment, but for procuring in like manner a levy and seizure, and that plaintiff cannot recover, in the absence of proof in support of both averments. Conceding the soundness of the insistence, there was evidence that Goldstein directed the levy. If he did so with knowledge of all the facts, it was also a question for the jury to determine whether or not he caused the seizure and whether or not he did so maliciously and without probable cause. Fulford testified "I did not levy...