Wilson v. Bryant

• Decision Date: 16 January 1934
• Citation: 67 S.W.2d 133
• Parties: WILSON v. BRYANT.
• Court: Tennessee Supreme Court

Page 133

67 S.W.2d 133

WILSON v. BRYANT.

Supreme Court of Tennessee.

January 16, 1934.

Certiorari to Court of Appeals on appeal from Circuit Court, Hamilton County; Oscar Yarnell, Judge.

Suit by Levecha Poe Bryant against Elizabeth Wilson for alienation of affections of plaintiff's husband. Judgment for plaintiff was affirmed by the Court of Appeals, and defendant brings certiorari.

Reversed and remanded.

Lynch, Bachman, Phillips & Lynch, of Chattanooga, for appellant.

Estill & Morgan, of Chattanooga, for appellee.

GREEN, Chief Justice.

This suit was brought by Mrs. Bryant for the alienation of her husband's affections by Mrs. Wilson. There was a judgment in favor of the plaintiff below for $18,000. Defendant below appealed in error to the Court of Appeals, and the judgment of the trial court was there affirmed. We granted a petition for certiorari, and the case has been fully argued here.

After the institution of the suit an ancillary attachment was sued out by the plaintiff and levied on a Marmon automobile and $700 in bank, the property of the defendant. The ground of the attachment was that defendant was fraudulently disposing of, or was about to fraudulently dispose of, her property, and that defendant had absconded and was absconding and concealing herself and her property. Defendant pleaded in abatement to the attachment, denying the charges of the affidavit upon which that writ issued, and she pleaded not guilty to the charges of the declaration. The issues arising upon these pleas were both submitted to the jury at the same time, and both issues found for the plaintiff.

It is first urged that there was no evidence to sustain the verdict of the jury on the plea in abatement. This contention is not well made. The defendant called on one of the attorneys for plaintiff, shortly after the suit was brought, told that attorney that he might as well dismiss the suit, that she was going to dispose of everything she had and leave Chattanooga, and that, if Mrs. Bryant was successful in the suit, she would not get anything "because there would be nothing to get." The testimony of the attorney to this effect is not contradicted, and we think it sufficiently shows that the defendant was concealing her property. This is enough to sustain the attachment. Boyd v. Buckingham & Co., 29 Tenn. (10 Humph.) 434.

After the attachment was levied on the automobile, the defendant replevied the same. Instead of executing the statutory bond, the defendant entered into a written agreement with plaintiff that the automobile should be released, and that, in the event plaintiff was successful in the suit and the writ of attachment sustained, defendant and J. J. Lynch, her surety, would pay the value of the automobile, not to exceed the sum of $2,000.

Under section 9460 of the Code a defendant in an attachment suit may replevy the property seized by giving a bond in double the amount of the plaintiff's demand, or the defendant may, at his option, give bond in double the value of the property attached. The bond is "conditioned to pay the debt, interest, and costs, or the value of the property attached, with interest, as the case may be, in the event he shall be cast in the suit."

The written agreement entered into between the parties, while informal in character, will be treated as a bond conditioned to pay the value of the property attached. Kuhn v. Spellacy, 71 Tenn. (3 Lea) 278; Ward v. Kent, 74 Tenn. (6 Lea) 128.

As heretofore stated, the trial judge submitted to the jury the issues both on the plea in abatement and the plea of not guilty. The jury found "all issues" for the plaintiff, but in returning their verdict did not fix the value of the car, although that was an issue arising upon the plea in abatement and proof was introduced thereupon. The trial judge himself fixed the value of the car at $2,000 in rendering judgment.

This action of the court below is justly challenged. Considering chapter 121 of the Acts of 1897 (Code §§ 8755, 8756), authorizing a defendant to plead both in abatement and in bar at the same time, in Railroad v. McCollum, 105 Tenn. 623, 59 S. W. 136, 137, the court said: "The act contemplated there should be a verdict on both pleas, even though the plea in abatement, which should be first considered and acted upon, were determined in favor of the defendant." And again: "When the case is tried by a jury, the jury should, therefore, be instructed to find the issue on the plea in abatement, and, though they should find that plea in favor of the defendant, they should nevertheless find on the plea to the merits, and report."

The plaintiff demanded a jury in her first pleading tendering an issue. The case thereby became a jury case and went on the jury docket. All issues of fact arising in the case thereupon became questions for the determination of the jury. Code §§ 8734, 8736.

Error is also assigned upon the action of the court below in excluding the testimony of an automobile dealer as to the value of the car attached, and this assignment of error must be sustained. The dealer had not examined this particular car, but was familiar with the value of secondhand automobiles in the Chattanooga market. The trial judge ruled out his testimony, being of opinion that evidence as to the value must come from one who was acquainted with this identical machine. A question was submitted to this witness describing the car generally, giving its make, the date of its purchase, and assuming that it had been subjected to average use, and the witness was asked to estimate its value. We think the answer to this question should have gone to the jury.

A witness who is familiar with the value of property of the same character, although he has never seen the property in question, is competent as an expert witness on such value. Jones' Commentary in the Law of Evidence (2d Ed.) vol. 3, p. 2492; Huddy's Encyclopædia of Automobile Laws (9th Ed.) vol. 17-18, pp. 550, 551. This rule is recognized in Union Traction Co. v. Anderson, 146 Tenn. 476, ...