Dothard v. Sheid

SOMERYILLE, J. This is a suit on an attachment bond brought by the appellee against the appellants. A demurrer was interposed by the defendants in the lower court raising various objections to the sufficiency of the complaint. The complaint, though very inartificially drawn, was' in substantial compliance with the form prescribed in the Code for suits on bonds with conditions. — Code, 1876, § 3009, p. 703. There w’as no necessity for any allegation that the defendants-refused to pay the amount of damages claimed. Nor was any averment necessary that the bond sued on had been approved by the elerk who issued the attachment. If the bond was received and filed by him, and he thereupon issued the process or writ of attachment, he will be estopped from afterwards deny [138] ing liis approval of it, and the obligors will be liable. It is sufficient to hold the obligors, if the bond was actually executed and delivered before the writ issued. — Drake on Attach. §§ 120-121; Pearson v. Gayle, 11 Ala. 278. The breaches assigned were, 1st, that the attachment was wrongfully sued out; 2nd, that it was vexatiously sued out; 3rd, that it was maliciously sued out. Other averments were also made assigning these breaches conjunctively instead of severally. These assignments of breaches were sufficient under the authority of Gabel v. Hammerwell, 44 Ala. 336, a case which has now been acted on by the legal profession for over ten years, and which we are not inclined to disturb. It is not necessary to aver, ipsis verbis, that the attachment was sued out without ccmse. If it was wrongfully sued out, it must be implied that it 'was without cause. — Sharpe v. Hunter, 16 Ala. 765. And that it was levied on plaintiff’s property was matter of evidence merely to establish the quo modo and the qucmdmn of the alleged damage. Such levy was not required to be alleged in the complaint under the liberal form prescribed in the statute. In suits on bonds with conditions, ordinarily it is only necessary to allege the date and execution of the bond by the defendant ; to set out the condition in hcec verba, or in substance; to allege that the condition of the bond has been broken by the defendants; to state concisely the breach .or breaches complained of, arid to conclude with the averment that the plaintiff has thereby suffered damage. — Code, § 3009, Form No. 12. The form of complaint, however, laid down in the Code was designed only to cover general damages, or such as necesscm'ily result, and which the law implies from the injury complained of, the defendant being presumed to be aware of the necessary-consequences of his conduct, and therefore not liable to surprise in the proof of them'.' — -2 Greenl. Ev. § 254. It has been expressly held not to cover special damages, or such as are not the necessary result of defendant’s wrongful act. — Lewis v. Paull, 42 Ala. 136. In a suit on an attachment bond, if the attachment is wrongfully sued out, the statute limits the recovery of damages to such as the plaintiff has actually sustained. If maliciously sued out, as well as wrongfully, the jury may award vindictive or exemplary damages. — Code, 1876, §§ 3317-18. In either event reasonable and necessary counsel fees incurred in defending the attachment suit are recoverable as a part of the lawful damages. — Higgins v. Mansfield, 62 Ala. 267; Seay v. Greenwood, 21 Ala. 491; Marshall v. Betner, 17 Ala. 832. And though otherwise held by this court in its former decisions, it was settled in Bolling et al. v. Tate, 65 Ala. 417, that such damages also include counsel fees incurred in prosecuting or defending an appeal to the Supreme Court. Such [139] fees ean not, however, be recovered as general damages. They are the proximate result of the wrongful suing out of the attachment, but they are not the necessary result of such wrongful act, or such damages as are implied by law. It may'be that no counsel were necessary and none were employed. The attachment suit may have been dismissed before the entry of defendant’s appearance, or he may have refused to defend it at all. We think, for this reason, that counsel fees in such eases can be claimed only as special damages, and must therefore be claimed as such specifically in the eomplaint. — 2 Sedgwick Dam. (7th Ed.) p. 608, note; O’Leary v. Rowan, 31 Mo. 117; 2 Greenl. Ev. § 254; Lewis v. Paull, 42 Ala. 136. A proper application of these principles shows that there was no error in overruling the demurrer to the complaint; but that there was error in permitting evidence of the value of counsel fees incurred in defending the attachment suit, in as much as they were not specifically claimed in the pleadings. There was also error in admitting in evidence the certificate of reversal of the judgment of the attachment suit. This certificate, which was signed and transmitted by the clerk of- the Supreme Court, could only be looked to as authorizing the lower court to proceed to a new trial in the case to which it relates. The best and only legal evidence of the reversal of such judgment by tlie appellate court was a transcript of its records properly certified or exemplified. — 1 Whart. Ev. § 107; Draughan v. Bank, 3 Stew. 54; Locke v. Winston, 10 Ala. 849. It was proper to admit in evidence the record of the attachment and proceedings thereon. — Donnell v. Jones, 17 Ala. 689. This record included the judgment of non-suit to the admission of which exception was talcen. If the entire record introduced shows it was subsequently set aside by the court, no injury can be suffered by appellants. If not set aside, it was a discontinuance of the cause of action. The testimony of the witness Sheid, that “ Dothard said he had more money than the witness Sheid had to spend in the law suit,” was competent to illustrate the quo animo of the attachment proceedings. Among the-breaches assigned were the averments that the attachment had been vexatiously, and also maliciously sued out. Any conduct or language of the plaintiff in attachment tending to establish these averments was relevant evidence in an action on the attachment bond. It is unnecessary to apply in detail these principles to the charges of the lower court. It appears plainly from them that the court erred to such extent as to require its judgment to be reversed, whieh is hereby accordingly, done and the cause remanded.