Bradford v. Lawrence

MERRITT, J. [1, 2] Appellee argues that the appeal in this case should be dismissed, but there is nothing in the record to indicate a submission on motion to dismiss. It may be stated however, that the record discloses the appearance in this court of one of the attorneys of record in the trial court for the defendant, who did not join in the appeal, and the waiver by such attorney of notice of summons as is provided for by Acts 1911, p. 589. The purpose of the act is to require notice to the defendant, who does not join in the appeal, to ’do so if he desires, and the waiver thereof by the attorney, on whom the act specifies the notice may be served, is sufficient. The supersedeas bond executed by the appellant taking the appeal is ample to protect the appellee to the extent of the full amount of any judgment that may be rendered in his favor. Joseph Bradford, one of the appellants, instituted a suit in the circuit court of Randolph county to recover of Hamp Lawrence, the appellee, the sum of $809 alleged to be due by account and certain described promissory notes. At the time of the filing of this suit appellant, Joseph Bradford, made affidavit alleging that the appellee was his tenant; that he was indebted to appellant in an amount of money due or to become due, and that he was removing his property from the rented premises without the consent of the affiant, or otherwise disposing of a part or all of the crop without first paying all rents and advances, and that appellee had refused to pay on demand. Thereupon a writ of attachment was'issued by the clerk of the court and delivered to the sheriff, commanding him to attach so much of the estate of the appellee as would be sufficient to satisfy the debt and cost according to the complaint. The attachment was levied on certain personal property of the appellee, described in the sheriff’s return, consisting of mules, corn, fodder, etc. At a subsequent term of the court, the attachment was quashed, and at the trial of the suit on the account and notes judgment was rendered in favor of the appellant, Joseph Bradford, against apr pellee, for the sum of $464.84 and cost. After the attachment was quashed, and at a subsequent term of the court, an order was made directing payment to the appellant Joseph Bradford of the proceeds of the sale of the attached property, less $200 to be retained for the payment of probable cost. It appears that, by virtue of such order, $231.46 was paid him, he executing bond for the same. Subsequent to this the appellee brought suit on the attachment bond against appellant Joseph Bradford and his surety, J. E. Bradford, the other appellant, and recovered a judgment against them for the sum of $340.60, from which judgment the appeal in this ease is taken. On this trial in the circuit court issue was joined on appellants’ plea of the general issue and a plea of set-off, appellant Joseph Bradford asking that his judgment, as set out above, be set off against any claim or demand that might be found against him in favor of the plaintiff. There are many assignments of error, but we shall consider only those insisted upon in argument and brief of counsel. - [3, 4] The trial court did not commit reversible error in refusing to give written charge 2 for the appellant. This charge was predicated on the evidence, and there was some evidence from which the jury might infer that the credit of the plaintiff had suffered on account of the suing out of the attachment. But it was reversible error to allow the plaintiff to prove, over the timely objection of the defendant, that his credit had suffered on account of the issuance and service of the attachment, such being special damages, and it being necessary to recover such special damage that there should be an allegation to this effect in the complaint. Donnell v. Jones, 13 Ala. 490, 48 Am. Dec. 59; White v. Wyley, 17 Ala. 169; Lewis v. Pauli, 42 Ala. 139; Pollock & Co. v. Gantt, 69 Ala. 373, 44 Am. Rep. 519; Marx Bros, v. Leinkauff, 93 Ala. 453, 9 South. 818; Vandiver & Co. v. Waller, 143 Ala. 411, 39 South. 136. [5] Over the timely objection of the appellants, the appellee was allowed to show a large amount of court cost incurred in the attachment suit, and that this cost had been paid. The evidence shows that these costs were paid out of the proceeds of the sale of the attached property, and not by the appellee. This being so, these were not elements of damage, such as were recoverable by the appellee in this case. The appellee was not entitled to recover the full proven value of the attached property and the costs in addition where, as shown in this case, they were not paid by him. [6] The appellee should not have been permitted to show that in July, before the attachment suit was begun, the appellant Bradford took from him a mule. This was for property, so far as the record discloses, that did not enter into the attachment suit, and was a matter of account that no doubt entered into the amount of the judgment that was recovered by appellant Bradford against appellee at a later date. If damages are recoverable on account of such action, they were not such as could enter into a suit on an attachment bond where the attachment was subsequent to the taking of the mule, and shown to have no connection whatever with the taking of it. [7] Written charge 4, as requested, should have been given for appellee. The judgment of August 19, 1919, was conclusive between the parties as to the amount owing at that time. *141 [8] It was not permissible to allow appellee credit on the judgment of appellant to the amount of $231.64, the amount of the proceeds of the sale of the property delivered to the appellant, and then allow the appellee to recover the full value of the property attached, less the amount of appellant’s judgment so reduced. And for this reason written charge 3 should have been given for the appellant. [9] There was no error in refusing to permit the appellant to show that his judgment had been reduced to the amount for which it was rendered by virtue of the appellee being given credit for the value of the attached property. The record does not disclose that the appellee replevied the property, and that he voluntarily agreed that the proceeds should be applied to a payment on his indebtedness to the appellant. The facts in this case do not bring it within the principle laid down in Painter v. Munn, 117 Ala. 322, 23 South. 83, 67 Am. St. Rep. 170. See, also, Hundley v. Chadick, 109 Ala. 575, 19 South. 845.. If the plaintiff in the attachment proceedings be permitted to make this defense when sued on his bond, the restraints imposed by statute for the purpose of preventing'an abuse of the process would be useless. “If upon the theory, if no wrong is done by r sale of property in violation of law, when the proceeds of sale are applied to pay a just debt, parties were allowed to wield the process of the courts in their own favor, exacting th measure of justice which they claimed, however rightfully, it is manifest oppression and abuse would soon follow, and private rights would be subverted.” Harrison v. McCrary, 37 Ala. 690. For the errors pointed out, the judgment of the circuit court is reversed, and the cause remanded. Reversed and remanded. 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