Smith v. American Bonding Co.

Clare:, C. J. Tbis is an action to recover damages alleged to bave been sustained by reason of tbe wrongful levy of an attachment upon tbe property of tbe plaintiff in a former proceeding in wbicb be was defendant and successfully defended tbe suit. Tbe plea of tbe statute of limitations cannot be sustained. Tbougb tbe property seized under tbe attachment was released upon tbe execution of tbe defendant’s undertaking more than three years before tbe beginning of tbis action, tbe “recovery of judgment by tbe defendant,” wbicb was tbe condition authorizing suit upon tbe undertaking (Eevisal, 763) given by tbe plaintiff in procuring tbe attachment, took place less than two years before tbe institution of tbis action. Such recovery of judgment in tbe former action was a “vacation of tbe attachment ordered by tbe court.” Eevisal, 786. In view of tbe rendition of such former judgment, tbe judge properly refused to charge tbe jury that tbe plaintiff bad failed to show probable cause. Tbe items of damages allowed and excepted to are four: *576 1. Sixty dollars, wbicb was tbe amount the plaintiff paid for procuring the undertaking given by Mm to procure the release of the property attached. In the absence of evidence that it was excessive or unreasonable, it was properly allowed as damages. We cannot agree with the defendant that it should have been taxed as costs in the former judgment. It was no part of the court proceeding, but was a proper item of damages in an action upon the bond of the plaintiff in the attachment. The second item, allowing the plaintiff $20.60 for railroad fare and berth and board on trip attending to the release of the attached property, and the third item of $25, for value of his time in so doing, cannot be allowed. Every litigant necessarily incurs some expenses beyond the fees of his witnesses and of the officers of the court. But for these personal expenses and his time he cannot be allowed compensation, for it would open the door to great abuses, and would often result in oppression. Hyman v. Devereux, 65 N. C., 588; Midgett v. Vann, 158 N. C., 128. The only other itqm is $300, which the plaintiff was required to pay as penalties by reason of the delay in the execution of another contract for building caused by the attachment of his property which he was using in the execution of such other contract.- The property was attached on 25 March and the undertaking to secure the release thereof from the attachment was filed on 8 April. The evidence is that there was no unreasonable delay in executing the undertaking to secure the release of the property and that he could not have purchased new material and had it shipped in less time. Such damage was within the purview of the bond, even under Sledge v. Reid, 73 N. C., 440. The defendant contends that it was a misjoinder to join a cause 'of action against the principal for wrongfully suing out an attachment and an action against the surety upon the undertaking given by the plaintiff. R. R. v. Hardware Co., 143 N. C., 56. But, as it was pointed out in that case, this would not entitle the defendant in this action to have it' dismissed, but only to have the action divided, and as a nonsuit has already been *577 taken as to tbe principal, there is no ground of objection to proceeding in this 'action, which is now against the surety only. The judgment will be modified by striking out $45.60 as above pointed out. The judgment is therefore Modified and affirmed.