Schloss v. Rovelsky

• Decision Date: 12 June 1895
• Citation: 18 So. 71,107 Ala. 596
• Parties: SCHLOSS ET AL. v. ROVELSKY.
• Court: Alabama Supreme Court

18 So. 71

107 Ala. 596

SCHLOSS ET AL. v. ROVELSKY.

Supreme Court of Alabama

June 12, 1895

Appeal from circuit court, Dale county; J. M. Carmichael, Judge.

Action by D. Rovelsky against H. Schloss and others on an attachment bond. Judgment was rendered for plaintiff, and defendants appeal. Reversed.

This bond was conditioned as follows: "Now, if the said Schloss & Huddleston shall prosecute their said attachment to effect, and pay the defendant all such damages as she may sustain by the wrongful or vexatious suing out of said attachment, then the above obligation to be void, otherwise to remain in full force and effect." The complaint, as originally filed, then proceeds: "And plaintiff says the condition of said bond has been broken by the defendant in this: (1) Because the affidavit made to procure the issuance of said attachment alleges that plaintiff, 'Dora Rovelsky, is about fraudulently to dispose of her goods,' which averment in said affidavit is and was untrue and false (2) because said attachment was wrongfully sued out; (3) because said attachment was vexatiously sued out; (4) because said attachment was maliciously sued out; (5) because plaintiff had to employ counsel to defend her in said attachment suit; (6) because plaintiff was at an expense by payment of hotel bills to defend said cause; and (7) because plaintiff was doing a large and lucrative business in Ozark Ala., and said attachment was wrongfully levied on her whole stock of goods, amounting to several thousand dollars, and her store house was closed by the sheriff, and she was so kept out of her business for a long period of time, whereby she was damaged two hundred dollars,-all of which amounts defendants have failed and refuse to pay." Subsequently the plaintiff amended her complaint by filing another count in which she claimed damages for destruction of her business and loss of credit, and the expense to which she had been put to defend the attachment suit. Issue was joined on the pleas to the complaint; and upon the trial of the case, as is shown by the bill of exceptions, the plaintiff introduced evidence tending to show that at the time of the levy of the attachment at the suit of Schloss & Huddleston she was doing a large and lucrative business in the town of Ozark, Ala and that, after the levy of the attachment and the replevy of the goods by her, she sold out her stock of goods, and ceased to do business. The defendant introduced evidence tending to show that, prior to the suing out of the attachment by them against the plaintiff, her husband, Max Rovelsky, was placed in jail on a charge of arson in the first degree; and that the plaintiff, defendant in attachment, repeatedly offered to sell or turn over her entire stock of goods and all of her property to any one who would make bond for her husband, in order that he might be released from imprisonment. The plaintiff, as a witness in her own behalf, testified, in reference to this matter, "that at the time Max Rovelsky was in jail she offered to make bond for him, but did not offer to sell and convey all of her property to any one to make bond for said Max Rovelsky." At the request of the plaintiff, the court...