Harris v. White

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, J.
• Citation: Harris v. White, 212 Ala. 54, 101 So. 751 (Ala. 1924)
• Decision Date: 23 October 1924
• Docket Number: 7 Div. 506.
• Parties: HARRIS v. WHITE.

101 So. 751

212 Ala. 54

HARRIS v. WHITE.

7 Div. 506.

Supreme Court of Alabama

October 23, 1924

Appeal from Circuit Court, Cleburne County; A. P. Agee, Judge.

Action by J. C. White against W. S. Harris and others for breach of an attachment bond. Judgment for plaintiff, and defendant W S. Harris appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Reversed and remanded.

Merrill & Jones, of Heflin, for appellant.

Hugh Walker, of Anniston, for appellee.

THOMAS J.

The suit was upon an attachment bond signed by several obligors.

The judgment entry recites that there was a jury duly sworn and impaneled, and that-

"Upon their oaths do say, after hearing the evidence in the case, we, the jury, find the issue in favor of the plaintiff, J. C. White, and assess his damage at $75.00. C T. Kitchens, Foreman."

The complaint was against W. S. Harris, E. N. McGriff, and A. O Harris, each of whom, by attorney, for plea, and answer said: "They deny the allegations of plaintiff's complaint." Under such pleadings and issues, and the verdict of the jury thereon, the following judgment was entered:

"And that the issue is in favor of the plaintiff, J. C. White, on the verdict of the jury, the court considered, ordered, and adjudged that the plaintiff have and recover of the defendant, W. S. Harris, judgment for $75, and against which judgment no exemption is allowed as to personal property."

The defendant W. S. Harris took an appeal, and one of his assignments of error is that-

"The court erred in rendering judgment against defendant, W. S. Harris, only when suit was against W. S. Harris, E. N. McGriff, and A. O. Harris."

It is error, under a verdict against all of the defendants, to render judgment against only one of them, and as to one who can assign the same is reversible error. There should be judgment disposing of the case as to the other defendants under their respective pleadings and issues presented and verdict rendered, unless it be set aside. Tennessee Valley Bank v. Valley View Farm, 210 Ala. 123, 97 So. 62. That is to say, a judgment must be declared and determined by the formal entry of record. Lewis v. Martin, 210 Ala. 401, 98 So. 635. The instant judgment was contrary to the verdict rendered by the jury. The plaintiff in the attachment suit cannot complain of the fact that the judgment was not rendered against his sureties on the attachment bond.

It has been held that, though an attachment may have been sued out maliciously and vexatiously, an action cannot be maintained on the bond unless it is wrongfully sued out-"without the existence of any one of the facts which authorized a resort to the process." Calhoun v. Hannan, 87 Ala. 277, 6 So. 291. Such is the result, since there must be an unlawful act before the good or bad faith with which the act was done becomes material. Jackson v. Smith, 75 Ala. 97. It is further decided that to maintain an action under the statute for maliciously suing out an attachment, ill will, or vindictiveness need not be proved-"only the want of probable cause, coupled with the unlawful act of suing out the writ." Bradford v. Lawrence, 208 Ala. 248, 94 So. 103; Bell v. Seals Piano & Organ Co., 201 Ala. 428, 78 So. 806.

Considering the assignments of error as presented, we are of opinion that charges should have been given.

Though the stated ground of attachment was not that defendant in attachment had removed or consumed a part of the corn grown on the rented premises, yet defendant in the instant suit on the attachment bond was denied the right to testify that he did not defend on such ground. In this state of the evidence charge G should have been given. The same applies to requested charge D. As early as Kirksey v. Jones, 7 Ala. 622, and Lockhart v. Woods, 38 Ala. 631, it was held that in an action on an attachment bond, the defense is not limited to proof of the particular facts stated in the affidavit for the attachment, and may be rested on any of the authorized grounds for the issue of an attachment-on absence of probable cause. This rule is followed by this court. Bell v. Seals Piano & Organ Co., 201 Ala. 428, 78 So. 806; Baxley v. Segrest, 85 Ala. 183, 4 So. 865; Brown v. Master, 104 Ala. 451, 16 So. 443; Painter v. Munn, 117 Ala. 322, 334, 23 So. 83, 67 Am. St. Rep. 170. The charge should have been given.

Charge Y requested by defendant, was properly refused, since it was not limited, as it should have been, to the recovery of vindictive damages. Bell v. Seals Piano & Organ Co., supra.

The objection, after answer, that plaintiff was "put to expense in defending the attachment suit," "paid" his "attorney $25," and that his expenses "all told" were $50, came too late. It was not shown that the objection to the evidence could not have been duly interposed before answer; nor was a motion to exclude overruled, and to which action due exception was reserved. The fact that it was not shown that the...