Wells Co. v. Lane

• Decision Date: 28 April 1927
• Docket Number: 6 Div. 915
• Citation: 217 Ala. 10,115 So. 77
• Parties: WELLS CO. v. LANE.
• Court: Alabama Supreme Court

115 So. 77

217 Ala. 10

WELLS CO. v. LANE.

6 Div. 915

Supreme Court of Alabama

April 28, 1927

Rehearing Denied June 21, 1927

Certiorari to Court of Appeals.

Action for malicious prosecution by Hubert Lane against the Wells Company. Judgment for plaintiff (115 So. 74), and defendant brings certiorari. Reversed and remanded.

See also, 115 So. 79.

J.B Ivey, of Birmingham, for appellant.

David J. Davis, of Birmingham, for appellee.

GARDNER J.

Hubert Lane recovered a judgment against Wells Company, a corporation, in an action for malicious prosecution, charging that the defendant did "wrongfully, maliciously, and without probable cause therefor cause a garnishment to be run out of the municipal court of Birmingham, and to be served upon plaintiff's employer, the American Cast Iron Pipe Company." This judgment was affirmed by the Court of Appeals, and this petition for certiorari by the Wells Company is filed to review the ruling of said court affirming this judgment.

It appears that suit by Wells Company against Hubert Lane to recover $10 was filed in said municipal court August 21 1925, and garnishment issued to the American Cast-Iron Pipe Company, returnable September 11, 1925. On this latter date judgment was rendered for the plaintiff, Wells Company, for $10, the full amount sued for, and the money as disclosed owing to defendant by the garnishee condemned to the satisfaction thereof, and a few days thereafter the amount of the judgment and costs were paid into court by counsel for defendant, Lane. The question of indebtedness was therefore not only admitted, but conclusively settled, by the judgment rendered. 38 C.J. 419; Jones v. Kirksey, 10 Ala. 839; Marshall v. Betner, 17 Ala. 832.

One of the principal links of plaintiff's chain of evidence in the instant case was the letter bearing date of July 20, 1925, addressed to Wells Company, and signed by counsel for Lane, which reads as follows:

"Inclosed you will find check for $2.98, given to me by Hubert Lane to be paid you. He claims that is all that he owes you, and says that, if he owes you any more, and you can establish it in court, he is ready, able, and willing to pay it."

The Court of Appeals holds this letter was properly admitted in evidence upon the theory it had a tendency to show no necessity existed for the issuance of the garnishment. To this holding we cannot give our assent. The issuance of the garnishment in aid of the pending suit was expressly authorized by statute. Sections 8052-8054, Code of 1923. That it was issued upon affidavit and bond, as required by statute, was not questioned. The mere fact that nearly 30 days previous to the institution of the suit either plaintiff or counsel for him, had stated that, if judgment was recovered, he would be ready, able, and willing to pay it, tends to prove nothing of material importance in this action. The creditor was under no obligation to abandon his legal remedies upon a bare statement of that character, wholly unenforceable.

In the discussion of the case the Court of Appeals cites Dishman v. Griffis, 198 Ala. 664, 73 So. 966, and Pounds v. Hamner, 57 Ala. 342. Section 6214 of the Code of 1923, providing for suit upon attachment bonds, applies to bonds executed in garnishment proceedings (section 8054, Code of 1923), and the above-noted authorities dealt with suits upon such bonds as provided by statute, containing the condition to pay defendant "all such damages as he may sustain from the wrongful or vexatious suing out of such garnishment."

The present action is one of malicious prosecution and governed by different principles of law, as pointed out in Brown v. Master, 104 Ala. 451, 16 So. 443. In this latter authority the court said:

"But in the action of malicious prosecution against the plaintiff in attachment, the attachment must be wrongful, and must have been sued out with malice and without probable cause. If not wrongful, i.e., if the facts justify and authorize its issuance, if a statutory ground exists, no recovery can be had, though the defendant was actuated purely by malice in suing out the writ. If wrongful, but not malicious, no

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