Tebo v. F. Betancourt
| Decision Date | 04 May 1896 |
| Citation | 19 So. 833,73 Miss. 868 |
| Court | Mississippi Supreme Court |
| Parties | A. G. TEBO ET AL. v. F. BETANCOURT |
March 1896
FROM the circuit court of Jackson county HON. S. H. TERRAL, Judge.
The facts are sufficiently stated in the opinion.
Reversed and remanded.
Ford & Ford, for appellants.
The question presented is whether a defendant in an attachment suit can recover damages on the attachment bond when there has been none of his property levied on. This case is different from the case of Buckly v. VanDiver, 70 Miss. 622. In that case, while no plea in abatement was filed and the plaintiff's suit was defeated on the merits, Mrs VanDiver's property had been seized under the writ, and she was allowed damages. In the case at bar not a single dollar's worth of property belonging to Betancourt was seized, and the attachment, as to him, was merely brutum fulmen, and, in effect, served the purpose only of the ordinary summons. He came into court, not to rescue his own property, but merely to litigate the question whether he was indebted to Manuel or not. There was no evidence or pretense on the trial that the suit was malicious. Under these circumstances Betancourt stood just as any other citizen who is sued in ordinary common law actions, and is not entitled to recover damages. We have examined carefully the reports of this state to find a case where damages have been allowed the defendant in an attachment suit where there was no actual levy, and have been unable to find one. The text-books and digests at our command furnish no instance that we can find. The rule for the recovery of damages on attachment bonds, as laid down by the different authors, is as follows: The damages must be the natural proximate legal result or consequence of the wrongful act. Actual damage may be properly comprehended under two heads: (1) Expense and losses incurred by the party in making his defense to the attachment proceeding; (2) the loss occasioned by his being deprived of the use of his property during the pendency of the attachment, or by illegal sale of it, or by injury thereto or loss or destruction thereof. Sutherland on Damages, vol. 2, p. 59; Drake on Attachment, § 175; Marqueze v. Sontheimer, 59 Miss. 430; Johnson v. Bank, 4 Bush, 283; Waite's Actions and Defenses, 427.
In actions on an attachment bond, attorneys' fees in defending the principal action are not recoverable, nor are the cost and expenses of defending it recoverable. Waples on Att., p. 448; Bank et al. v. Wylie, 4 N.Y.St., 907; 52 Hun, 146; Frost v. Jordan, 36 N.W. (Minn.), 713; State v. Laribe, 25 Mo. App., 208; Adams v. Gomila, 37 La. Ann., 479. In a suit for wrongfully suing out an attachment, plaintiff cannot recover for the voluntary appearance and defense, there being no levy. 70 Ala. 308; 17 Ala. 167.
E. J. Bowers, for appellee.
All the authorities cited in appellant's brief are overruled by Buckly v. VanDiver, 70 Miss. 622, so far as the jurisprudence of this state is concerned. (Counsel here reviewed the authorities cited by appellant's counsel, and contended that the rule sustained by them was contrary to Buckly v. VanDiver, supra.) That the debt must exist is none the less a prerequisite to the proper use of the writ, and when the plaintiff fails on the debt, he is in no better attitude than if he fails on the other ground of attachment. Dean v. Stephenson, 61 Miss. 175. As was held in the Alabama case cited by appellant (Flournoy v. Lyon, 70 Ala. 308), and also in Drummond v. Stewart, 8 Iowa 341, the appellant cannot proclaim that his writ was ineffectual. An actual levy was made. Property was seized which the appellant asserted at the time belonged to appellee; true, it was claimed by a third person, but appellant took issue on that claim, and cannot now escape damages by saying that his wrongful act was mere brutum fulmen.
Manuel sued out an attachment against F. Betancourt, on the ground of nonresidence alone. The only property seized under the attachment was the schooner, Tres Hermonos, which was the property not of Betancourt, but of Rosa Betancourt, his wife. The sheriff gave Rosa Betancourt an indemnifying bond. No property at all of F. Betancourt was attached. Rosa Betancourt filed her claimant's affidavit at the return term. F. Betancourt, who was a nonresident, but none of whose property had been in any way attached, appeared, and pleaded to the main suit on the merits, the general issue and other pleas in bar. Judgment nil dicit was rendered in favor of Manuel on the attachment issue, but, on the trial on the merits, Betancourt won. Mrs. Rosa Betancourt then brought suit on the indemnifying bond for damages sustained by her by reason of the levy on her schooner, and recovered twenty-two hundred dollars, which sum has been paid. F. Betancourt then brought this suit on the attachment bond, for attorney's fees and expenses incurred in the defense of the action of assumpsit against him by Manuel. In the trial of this suit, the defendants asked the court to instruct the jury that, "in this case, because no property of the plaintiff was levied upon under the attachment writ, the plaintiff is not entitled to recover any damages in this case, " which was refused, and the refusal of this instruction is the controlling assignment of error.
This case is clearly distinguishable from the case of Buckly v. VanDiver , 70 Miss 622, 12 So. 905, by the material fact that, in that case, Mrs. VanDiver's property was seized under the writ of attachment, she being the defendant in the attachment. The attachment in this case was, as to F. Betancourt, mere brutum fulmen . He did not appear, as did Mrs. VanDiver, to secure the...
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Collins v. Wheeless
...bond, that was wrongfully sued out. The case of Roy v. First National Bank, 37 So. 641, was a case that showed the limitation of the Tebo in which the court said: "The distinction beween the case of Tebo v. Betancourt, 73 Miss. 868, 19 So. 833, 55 Am. St. Rep. 573, and Buckley v. Van Diver,......