Goodbar v. Lindsley

• Decision Date: 11 May 1889
• Citation: 11 S.W. 577,51 Ark. 380
• Parties: GOODBAR v. LINDSLEY
• Court: Arkansas Supreme Court

11 S.W. 577

51 Ark. 380

GOODBAR v. LINDSLEY

Supreme Court of Arkansas

May 11, 1889

APPEAL from Mississippi Circuit Court, J. E. RIDDICK, Judge.

Judgment reverse and cause remanded.

U. M. & G. B. Rose, for appellants.

Appellants were liable only for nominal damages. The goods were not sold under their attachment, but under the executions. The judgment creditors had a right to issue executions when they w proper. No man can be held liable for inducing another to do a lawful act. 34 Ark. 710; 37 Id., 620. But even if appellants were liable, there must be a separate action. 34 Ark. 710.

O. P Lyles, also for appellants.

No damages actually resulted from the levy of the attachment. The property was already levied on under executions and was sold to satisfy same. 37 Ark. 605. An attachment is not a lien until actually levied. Mansf. Dig., sec. 325; 29 Ark 85. So the lien of the attachment was subsequent to the lien of the executions, and nothing further being done under the attachment, no valid lien was created and no damages accrued.

Damages claimed for precipitating the levy and sale under execution are too remote. The verdict was not sustained by any competent evidence and is excessive.

E. F. Adams, for appellee.

The appellants admitted that the attachment was wrongfully sued out, and the law presumes Lindsley was damaged thereby. 35 Ark. 492. How much, was properly left to the jury. The proof shows that the damages were caused directly by the wrongful attachment.

The evidence is conflicting as to the amount of damages, and this court will not disturb the verdict.39 Ark. 387; 42 Id., 527; 44 Id., 258.

H. M. McVeigh, for appellee.

The remittitur has eliminated the question of excessive damages. The only question then is, is the verdict supported by the evidence? This court will not reverse upon the mere weight of evidence. There must be a total want of evidence. 21 Ark. 306; 19 Id., 559; Ib., 117, etc., etc.; 23 Ark. 215, review the evidence in detail, and contend that the damages resulted from the wrongful suing out of the attachment, and consisted of losses as follows: Loss on sale of goods; salary lost; expenses attending court; loss on stock; loss of book accounts; loss on cotton in the field.

OPINION

COCKRILL, C. J.

Goodbar & Co., sued out an attachment against Lindsley in an action at law, but failing to sustain their cause in that behalf, damages were assessed in the same proceeding as authorized by the statute, against them and their sureties in the attachment bond, for the wrongful issue of the attachment. The question presented by the appeal is, does the evidence sustain the assessment of damages?

The attachment went into the hands of the sheriff, simultaneously with two executions which had been issued upon judgments recovered by other creditors against the attachment defendant. The three writs were levied together upon a stock of merchandise and some live stock, the defendant's books of account and some ungathered cotton in the field. The merchandise and live stock were sold under the execution, but failed to bring enough to pay them off. The defendant in the attachment testified in a general way that they were sold under the attachment, but that was merely a matter of opinion on his part, and was obviously an incorrect statement, for the sheriff who held the order of attachment was not authorized by it to do more than perfect a levy upon the property, and the record shows that the order was returned and filed in the clerk's office by the sheriff before the sale; and it fails to show any further action under it by the officer, who specifically testified that the sale was made under the executions only.

1. It is argued that the attachment was maliciously sued out and that the defendant may recover on that score. But the recovery in proceedings of this nature is confined strictly to compensatory damages, and cannot go beyond. Holliday v. Cohen, 34 Ark. 707, et seq; Patton v. Garrett, 37 Ark. 605; Boatwright v. Stewart, 37 Ark. 614 at 619.

2. But it is urged that the proof shows that the issue of the attachment precipitated the levy of the executions; that those writs would not have issued at all if the plaintiff's wrongful process had not been sued out that it was the cause of the injury, and that the verdict is therefore justified. But the recovery against the Goodbars and their sureties must be based on the injury that was done by their writ, without regard to what another creditor may have been induced by their example to do. If another person acting without privity or concert with them has been guilty of an injurious act, he, and not they...