Goldstein v. Nobles

• Decision Date: 21 December 1916
• Docket Number: 6 Div. 305
• Parties: GOLDSTEIN et al. v. NOBLES.
• Court: Alabama Supreme Court

73 So. 822

198 Ala. 430

GOLDSTEIN et al. v. NOBLES.

6 Div. 305

Supreme Court of Alabama

December 21, 1916

Rehearing Denied Feb. 1, 1917

Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.

Action by Alex Nobles against H.H. Goldstein and Ed Putnam for maliciously suing out an attachment. Judgment for plaintiff and defendants appeal. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

Stokely Scrivner & Dominick, of Birmingham, for appellants.

George E. Bush, of Birmingham, for appellee.

ANDERSON C.J.

While this is a common-law action for maliciously and without probable cause suing out a garnishment, and is not an action upon the garnishment bond, it seems that under our cases the plaintiff did not have to await the determination of the main cause before suing for the wrongful issuance of the garnishment. Section 2966 of the Code of 1907 authorizes suit upon the bond any time within three years before or after suit is determined, and our court has held that this right exists as to the common-law action as well as a suit upon a bond. Alsop v. Lidden, 130 Ala. 553, 30 So. 401; Brown v. Master, 104 Ala. 463, 16 So. 443. It is true these cases construed the statute as it existed prior to the Code of 1907, and a part of section 565 of the Code of 1896 (now section 2966 of the Code of 1907) was left out of the present Code, but there was no change as to the right to bring the action either before or after the determination of the suit. It has also been held that this statute applies to actions for the wrongful suing out of garnishments as well as attachments. Barber v. Ferrill, 57 Ala. 446. Hence the trial court did not err in overruling the defendant's demurrer to the complaint for failing to aver that the suit had been determined, or in sustaining the demurrers to the special pleas setting up that this action was prematurely brought.

It is well settled that in an action for the malicious prosecution of an attachment suit, as distinguished from an action on the bond for the wrongful suing out of same, there can be no recovery unless it was sued out without probable cause. Brown v. Master, supra; Goldstein v. Drysdale, 148 Ala 486, 42 So. 744; Lane v. Ala. Penny Sav. Bank, 185 Ala. 656, 64 So. 608. It has also been held that a charge that the attachment was wrongfully, vexatiously, and maliciously caused is a sufficient negation of probable cause, and is therefore equivalent to the averment that the act was done without probable cause. Brown v. Master, supra. Hence there was no error in giving plaintiff's charge 2, as the existence of the facts there hypothesized was the equivalent to the nonexistence of a probable cause, but, if it was misleading, the defendant could have asked for an explanatory instruction. Indeed, the record shows that several such charges were requested and given. See defendant's given charges 3, 4, 6, and 7.

The trial court erred in giving the plaintiff's requested charge 1. It was not only faulty, but was in direct conflict with charges given for the defendant. The complaint was for a malicious prosecution in suing out the attachment, and in order for the plaintiff to recover thereunder the defendant's...