Mack, Stadler & Co. v. Jacobs

• Decision Date: 30 January 1893
• Citation: 70 Miss. 429,12 So. 444
• Parties: MACK, STADLER & CO. v. MORRIS JACOBS
• Court: Mississippi Supreme Court

12 So. 444

70 Miss. 429

MACK, STADLER & CO. v. MORRIS JACOBS

Supreme Court of Mississippi

January 30, 1893

October 1892

FROM the circuit court of Jackson county, HON. S. H. TERRAL Judge.

This is an action of attachment begun in December, 1891, by Mack Stadler & Co. against Morris Jacobs. It is subject to the provisions of "An act relating to attachment cases," approved March 11, 1884 (Laws, p. 76), the first section of which is as follows:

"SECTION 1. Be it enacted by the Legislature of the State of Mississippi, That if, upon the trial of a plea in abatement to any attachment, the jury shall find for the defendant, and shall certify in their verdict that they believe the attachment was sued out recklessly or wantonly, and without probable cause, or with intent to oppress the defendant, then they shall not be confined to actual damages merely, but any damages they may assess for the defendant shall stand, and judgment be entered therefor, unless the court shall certify in the judgment setting aside such verdict, that in its opinion the same is grossly unconscionable, or wholly unwarranted by the facts."

The grounds of the attachment are stated in the opinion. The defendant traversed the affidavit, and on the trial of the issue thus raised the jury returned the following verdict "We, the jury, find for the defendant, and find that the attachment was malicious, wrongful, and sued out without probable cause, and with intent to oppress the defendant, and assess his damages at $ 900. Judgment was entered accordingly, and, after motion for new trial overruled, plaintiffs appeal.

As the questions passed on by the court arise on the pleadings and instructions, it is not necessary to set out the evidence. It was conflicting, but sufficient, in the view of this. court and the court below, to warrant the verdict.

The instruction for plaintiff, which is specially noticed in the opinion, is as follows:

"The court instructs the jury that, although they may believe that the defendant was solvent at the time the attachment was sued out by it, if they believe that his conduct and language to plaintiff was such as led plaintiff to believe him to be insolvent, and that he was converting, or was about to convert, his property into money, or evidence of debt, with intent to place it beyond the reach of his creditors, they should find for plaintiff, if they believe that the language or conduct of defendant was such as warranted the charges contained in the affidavit. "

The instructions for defendant, commented on by the. court, are as follows:

"1. The court instructs the jury that if they find from the evidence that the attachment was sued out maliciously, wrongfully and without probable cause, or with intent to oppress the defendant, then the form of their verdict may be: 'We, the jury, find for the defendant, and find that the attachment was malicious, wrongful and sued out without probable cause, and with intent to oppress the defendant, and assess his damages at $ '"

"5. The court instructs the jury, in behalf of the defendant, that, if they find for the defendant, they will assess to him such damages as the evidence shows he has sustained by reason of the wrongful suing out of the attachment; and if they believe that the attachment was sued out maliciously, recklessly and without probable cause, or with intent to oppress the defendant, then the jury are not confined to actual damages, but may assess damages for injury to defendant's reputation and credit."

Affirmed.

Nugent & Mc Willie, for appellants.

1. The affidavit does not conform to the statutory requirement, but treats the debt as one due; and the defendant in the court below proceeded to trial without any question as to the propriety and sufficiency of the affidavit. The only proper course would have been by motion to quash the affidavit because the debt was not due. Had this been done, the question of the maturity of the debt would have been the only issue involved. A plea in abatement of the character employed in this cause is not authorized in this state. It is certain that the jury must have been influenced by the fact that the debt was not due.

2. The first instruction for plaintiff should have been given. There was evidence tending to show the hypothetical state of facts relied on, and it should have been given, notwithstanding its general language. Roach v. Brannon, 57 Miss. 490; Cocke v. Kuykendall, 41 Ib., 65; Penny v. Holberg, 53 Ib., 567; Morgan v. Nunes, 54 Ib., 308.

3. The first instruction for defendant was erroneous. There was no real issue in the cause to justify the charge. If there was, there is no evidence to warrant the finding that the attachment was malicious. The very giving of the charge must have induced the jury to think that the presiding judge considered there was evidence to sustain it. The court had nothing to do with the question of damages. If it had, we presume it might have given in charge the statute itself. Certainly no words not found in the statute should have been adopted by the court. Besides, there is no rule in it prescribing the admeasurement of damages. Ordinarily, damages must be natural and proximate. Under this statute, the jury may award damages wholly speculative. There was no malice or oppression intended, and the damages should have been limited to such as were actually sustained. Meyers v. Farrell, 47 Miss. 281; Marqueze v. Sontheimer, 59 Ib., 430. The act of 1884 is scarcely constitutional in the form it which it appears, since it gives neither chart nor compass to the jury, and takes away the right of appeal.

Mayes & Harris, for appellee.

1. The objection that the ground of attachment was admitted because the plea did not deny non-residence, comes too late. It is made in this court for the first time. Railroad Co. v. Minor, 69 Miss. 710. Further, plaintiff went to trial on the affidavit without objecting to its sufficiency.

2. In fact, however, the denial that the debt was due is a good answer to the affidavit. Under the code of 1880, the attachment did not lie on a debt not due, on the ground of non-residence. Ordinarily, it is not competent, on the traverse of the affidavit, to go into the question of the existence of the debt sued on, but that is because the matter is in bar, and not in abatement. One who is a non-resident is not necessarily liable to attachment on that ground. The cause for attachment is not perfected unless the debt is due. Here is an attachment on two grounds, and both must exist. The non-resident cannot deny the first ground--namely, that he is a non-resident--but can deny that the debt is due. We submit that the only proper answer is a denial that the debt is due, and this is a complete defense. If it is sustained, the suit must abate. In Lowenstein v. Aaron, 69 Miss. 341, this court has exploded the idea that, on the trial of an attachment, the investigation is always to be limited to the existence or non-existence, literally, of the grounds averred for attachment.

3. Plaint...