Troy v. Rogers

• Decision Date: 12 November 1896
• Citation: 113 Ala. 131,20 So. 999
• Parties: TROY v. ROGERS ET AL.
• Court: Alabama Supreme Court

20 So. 999

113 Ala. 131

TROY v. ROGERS ET AL.

Supreme Court of Alabama

November 12, 1896

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by R. M. Troy against W. H. Rogers and others on an attachment bond. From a judgment in favor of defendants plaintiff appeals. Reversed and remanded.

The complaint alleged in certain counts that the attachment was wrongfully sued out, and in others that it was wrongfully and vexatiously sued out, and especially denied that the plaintiff was about to remove out of the state, as alleged in the affidavit for the attachment. A special claim for damages for attorney's fees incurred in defending the attachment suit, and also in asserting plaintiff's exemptions, was made. The fourth count is as follows: "The plaintiff claims of the defendants the sum of $325, for the breach of the condition of said bond set out in the first count, which is hereby referred to and made a part of this count, for that said attachment was wrongfully and vexatiously sued out against him, in this: That plaintiff had no property, real or personal, debts due him, or choses in action, or other estate whatever, liable to execution for the payment of any debt or claim held by the said Rogers against him; that plaintiff was, and has been for many years, a citizen and resident of said state of Alabama, and had no intention to give up his residence in said state, or to remove therefrom; and the said Rogers well knew that the plaintiff had no property or estate liable to execution for any debt held or claimed by him, and without probable cause for believing that the plaintiff was about to remove from the state, caused said attachment to be issued against this plaintiff, and levied on property which the said Rogers well knew was exempt, by the constitution and laws of the state, from levy and sale under any execution or attachment which the said Rogers was entitled to have and obtain from any court in said state; and plaintiff avers that, in suing out said attachment, said Rogers acted maliciously and wantonly, for the purpose of vexing annoying, and injuring the plaintiff." To this count defendant demurred on the ground "that the fact, if it be a fact, that the attachment was levied on exempt property constitutes no breach of the bond sued on in this case." Said demurrer was sustained. To the complaint defendants pleaded the general issue, and the trial was had upon issue joined on said plea.

The plaintiff introduced the bond sued on, executed by each of the defendants, and so much of the record in the attachment suit, wherein W. H. Rogers was plaintiff and R. M. Troy was defendant, as showed the institution of said suit and the affidavit made therein by Rogers on the 20th day of October 1894, wherein he alleged that the plaintiff, Troy, was about to remove out of the state; the issue of the attachment on the same day; the return of the sheriff, dated October 22 1894, showing a levy on the then defendant's horse; the filing by Troy of a claim of exemption in due form on the said 22d day of October, 1894; the contest thereof by Rogers; the trial of said contest; and the judgment of the court adjudging that the horse was exempt and was of the value of $100. There was other evidence, introduced by plaintiff, tending to show that he had resided in Alabama continuously since 1887, and that, at the time of suing out the attachment, he had not moved away from Alabama, had not acquired a home anywhere else than in Alabama, and had made no arrangements looking to acquiring such a home; that, upon the levy of the writ of attachment upon the horse which was owned by the plaintiff in the present suit, he filed his claim of exemptions, in which he claimed, among other things, the horse so levied upon; that this claim of exemptions was contested by Rogers, the defendant in the present suit, and decided in this plaintiff's favor. On cross-examination plaintiff was asked whether he had not, in October, 1894, some time prior to the 20th, tried to sell to one Welborn, his horse, rifle, and furniture, and did not then state that he expected to go to Georgia to sell chewing gum. To this question plaintiff objected, on the ground that it was not part of the res gestæ,-that it was not shown in connection with any act or shown to be near the time when plaintiff did go out of the state. The court overruled the objection and the witness answered that he had offered to sell the horse and rifle some time in October. Witness was asked if, in October, 1894, when he filed his claim of exemption, he did not have an interest in a concern known as J. M. Fisher & Co., and if he did not own a watch and chain and a diamond scarf pin. To the introduction of this evidence the plaintiff objected, on the ground that the judgment on the contest was conclusive as an estoppel, and, further, because the evidence was irrelevant and immaterial to any issue in the cause. The court held that the judgment in the contest proceedings was at least prima facie conclusive, but remarked that, not being positive that it was entirely effective as an estoppel, he would reserve the question, and if he afterwards concluded that it was incompetent, he would rule it out; that it appeared that the evidence was competent, as tending to show a fraudulent disposition of property by the plaintiff, or a fraudulent withholding. The objection was overruled, and plaintiff then and there duly excepted. The witness, in response to the question, testified that he and Fisher were partners in a business venture, and that he invested therein $1,800, but that his interest in such business was worth nothing, and that the business concern was absolutely insolvent. The witness further testified that he owned a watch and chain worth $20, and a small diamond scarf pin, the value of which was not shown, that he owned these articles when he filed his schedule on the contest of exemptions, and that they were not included therein, nor did he include therein any interest in the business of J. M. Fisher & Co. The plaintiff was further asked, on cross-examination as a witness, if his wife had not died in June, 1894, leaving an estate, and whether he was not entitled to a share therein, and as to the amount of his interest therein; and in this connection the record of the probate court in the matter of his wife's estate was offered in evidence by the defendants. To the introduction of this evidence the plaintiff objected, on the ground that it was immaterial and irrelevant, and that the judgment on the contest of exemptions was conclusive as an estoppel. The court, after making the same remarks to this evidence as were made in reference to the other evidence introduced, overruled the objection, and to this ruling the plaintiff duly excepted. The witness, then, in answer to numerous questions in reference to his wife's estate, and as to the disposition of his share therein, testified that he was entitled to one-half of said estate, and that, upon final settlement, his share was $512, which amount he had paid, with the exception of $132, towards the support of his children. The plaintiff offered in evidence proof of what was a reasonable attorney's fee for defending the attachment suit and asserting his claim of exemptions. W. H. Rogers, one of the defendants, was called as a witness in his own behalf, and testified, in substance, as follows: That, three or four weeks prior to October 22, 1894, he had a conversation with Troy, in which he stated "that he was going to shake the dust of this country off of his feet; that the Elyton Land Company had reduced his salary to $75 a month." To this conversation the plaintiff objected, on the ground that it was no part of the res gestæ, and was irrelevant and immaterial, and moved to exclude the same, which said objection and motion were overruled, and the plaintiff then and there duly excepted. It was shown that the amount to which plaintiff was entitled in his wife's estate, added to all the other property shown to have been owned by him, amounted to less than $1,000, and thereupon plaintiff's counsel moved to exclude all the evidence about the investment by the plaintiff in the firm of J. M. Fisher & Co., on the ground that it was immaterial and irrelevant, but the court overruled the motion, reserving the question of the competency of the evidence, and the evidence remained before the jury until the general charge was made by the court. In its oral charge, the court instructed the jury that, although he had allowed the proceedings in the probate court and investments by the plaintiff in J. M. Fisher & Co., and the fact that certain articles were omitted by the plaintiff from his schedule upon the claim of exemption, to be testified to before the jury, he now instructed the jury that they were not to consider this matter at all, and the same is now excluded; that it was shown that the property levied on under the attachment was exempt to the plaintiff, and the only question they had to consider was whether the plaintiff was about to remove out of the state. The proceedings before the probate court for the settlement of the said estate having been introduced in evidence, a memorandum purporting to set out the amount and value of the...