Cole v. Noerdlinger

Per Curiam. This is an action brought by the respondent to recover damages alleged to have been sustained by the wrongful and malicious suing out of an attachment, and was brought against the plaintiff in attachment and his bondsmen. From a judgment of $130' in plaintiff’s favor, the defendants have appealed. It clearly appears from the record that the verdict included $100 for expenses incurred by plaintiff in securing the dissolution of the attachment, $25 attorney’s fees admitted by the answer to be reasonable, and $5 actual damages. In view of this, the only question that appellants, are entitled to have considered is the correctness of the court’s ruling upon a question arising on the pleadings. At the trial respondent introduced proof showing that, he had been to expense in procuring witnesses and making-preparations for the hearing of the motion to dissolve the attachment. No evidence was introduced in opposition to this, and the court instructed the jury that, if they found for the plaintiff, they should allow $100 for expenses incurred by him in procuring the dissolution of the-attachment. The instruction was correct, because, irre [53] speetive of the evidence in the case, the attempted denial contained in the answer amounted to nothing more than a negative pregnant, and, even if the instruction was erroneous, we would still he bound to regard it as harmless, because the uncontradicted testimony at the trial would have required the jury, under proper instruction, in the event of a verdict being for plaintiff, to allow him for the expenses incurred. Affirmed.