Little v. Lischkoff

• Decision Date: 06 February 1893
• Citation: 12 So. 429,98 Ala. 321
• Parties: LITTLE ET AL. v. LISCHKOFF.
• Court: Alabama Supreme Court

12 So. 429

98 Ala. 321

LITTLE ET AL. v. LISCHKOFF.

Supreme Court of Alabama

February 6, 1893

Appeal from circuit court, Tuscaloosa county; S. H. Sprott, Judge.

Action by Sam Lischkoff against John Little and others to recover damages for the alleged breach of an attachment bond, in that the attachment had been wrongfully and vexatiously sued out. There was judgment for plaintiff. Defendants appeal. Reversed.

The testimony for plaintiff tended to show that prior to and at the time of the levy of the attachment he was a merchant doing business in the city of Tuscaloosa; that before the levy of the attachment his credit was good, but since that time it was destroyed; and that by reason of the levy of the attachment his stock of goods, which was worth $5,300, was sacrificed at the sheriff's sale for $3,100, and that he was greatly damaged by the suing out of the attachment. The ground for the issuance of the attachment was that plaintiff was fraudulently disposing of his goods for the purpose of hindering, delaying, and defrauding his creditors; and the testimony for defendants tended to prove the truthfulness of said ground for attachment. The only assignments of error which are presented for the consideration of this court are based on exceptions reserved to the rulings of the lower court upon the evidence. Upon the introduction in evidence of the depositions of the witness Frieder, the plaintiff moved to exclude from the jury the several answers hereinafter copied, the defendants separately excepted to the court's sustaining said motion to exclude the same. In answer to the question as to whether or not said witness knew that Lischkoff was about to fail, he answered, "We knew that Sam Lischkoff was going to fail;" and in answer to the question as to who first brought word about Sam Lischkoff and that Mr. Fitts, an attorney, was getting ready to attach him, the witness answered, "Zeibert first brought word." After stating that certain goods were taken from the store of Lischkoff, he was asked if he ever heard of these goods again, and answered, "I heard of these goods after this." Upon his testifying that certain goods were shipped out of the store of Lischkoff, who sent the bill of lading to Birmingham, he further testified, "And they got the goods out of the depot by the bill of lading, but whoever had the bill of lading is something I do not know." This statement was excluded by motion of the plaintiff. Upon the examination of one Webb, who was the depot agent at Tuscaloosa, the defendants asked the said Webb the following question: "What shipments do the books of the railroad show were made to Carbon Hill during October and November, 1890, and up November 29th?" The plaintiff objected to this question, and the defendants duly excepted to the court's sustaining his objection. The other rulings of the court upon the evidence are sufficiently stated in the opinion.

Fittz &amp Somerville, for appellants.

G. W Van Hoose, for appellee.

HARALSON J.

1. The plaintiff in the court below, appellee here, being examined as a witness in his own behalf, was asked by his counsel to state the total amounts due him by each person indebted to him at the time of the levy of the attachment on his stock of goods; and, to refresh his memory, he was allowed to examine his ledger as to entries of indebtedness. After an examination of them, he stated that the entries had been made by him, or by his bookkeeper under his direction, in the usual course of his business as a merchant, and he had personal knowledge of their correctness; and he then stated as a matter of independent recollection, after being thus refreshed, what amounts were due to him. Defendants' counsel then asked witness on the cross-examination, "if all these entries of the amounts due, to which he had testified, were in fact made as he had stated in his direct examination, and were not, some of them, made by himself since the attachment, and since the origin of this suit." To this question the plaintiff objected, because the book had never been offered in evidence, and the same was irrelevant. The court sustained the objection against the exception of the defendants. This was an erroneous ruling. The witness having refreshed his memory by an...