Hamilton v. Maxwell

• Decision Date: 29 October 1898
• Citation: 24 So. 769,119 Ala. 23
• Parties: HAMILTON ET AL. v. MAXWELL.
• Court: Alabama Supreme Court

24 So. 769

119 Ala. 23

HAMILTON ET AL. v. MAXWELL.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, St. Clair county; George E. Brewer Judge.

Action by M. L. Maxwell against N. O. Hamilton and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

Plaintiff counted upon an attachment bond which was executed by the defendants. The breaches of the bond complained of were averred in the complaint as follows: "(1) The said attachment was wrongfully sued out, (2) the said attachment was vexatiously sued out, (3) the said attachment was maliciously sued out, all to the great damage of plaintiff as above stated. Plaintiff further avers that he was not fraudulently disposing of his property at the time said attachment was sued out, nor at any time prior thereto, and that the ground for suing out of said attachment as stated in the affidavit of said N. O. Hamilton was untrue." A former suit had been brought by the plaintiff in this action against the same parties, counting upon the same attachment bond, and seeking the same recovery. In the former suit the plaintiff took a nonsuit, and there was judgment rendered against him for the costs. He had never paid this judgment. The defendants in the present suit moved to stay the further proceedings in this cause until the plaintiff paid the costs in the former suit. The court overruled this motion, and the defendants duly excepted. Upon the trial of the cause it was shown by the evidence that the defendants had sued out before a justice of the peace, a writ of attachment against M. L. Maxwell, the plaintiff in the present action; that this writ had been delivered to a constable for levy; that after the delivery of the writ to the constable he went to the lumber yard of the defendant in attachment, and, meeting him told him that he had a writ, and then tacked up a notice, in the lumber yard, that the lumber contained therein had been levied upon under a writ of attachment in favor of Hamilton &amp Bro., plaintiffs in attachment. It was further shown that subsequently the lumber which was contained in the lumber yard of M. L. Maxwell was sold under the writ of attachment. During the examination of N. O. Hamilton, one of the defendants, as a witness, and after he had testified that he was the person who obtained the issuance of the writ of attachment, he was asked the following question: "At the time you sued out said attachment, did you entertain any ill will or malice towards the plaintiff?" To this question the plaintiff objected upon the ground that it called for illegal testimony. The court sustained the objection, and to this ruling the defendants duly excepted. It was shown by the evidence that prior to the issuance of the attachment one of the plaintiffs in attachment went to the place of business of M. L. Maxwell, and demanded payment of his indebtedness to Hamilton & Bro., and, upon his saying that he had no money with which to make the payment, he agreed with said Maxwell that he would take lumber in payment therefor; that upon said Hamilton's picking out some of the lumber, to be taken in part payment of Maxwell's indebtedness, Maxwell told him that it belonged to other parties; and that, upon selecting some shingles to be so applied in part payment of the indebtedness, Maxwell told him that these shingles belonged to his two sons, one of whom was 19 and the other 22 years of age, and that he had permitted his sons to saw the shingles for their own use when he was not otherwise using the mill. The evidence for the defendants in the present suit tended to show that Maxwell had made no payment on his indebtedness. The defendants requested the court to give to the jury several written charges, and separately excepted to the court's refusal to give each of them as asked. Among these charges was the following: "(2) That unless the evidence shows to them, to a reasonable certainty, that S. L Youngblood, the constable, took some dominion over the lumber in controversy, then there was no levy on the lumber, and the plaintiff was in no way prevented by said attachment from removing, selling, or disposing of such lumber as he might have desired." "(5) If the jury believe from the evidence that Hamilton sued out the attachment under an honest belief,...