Hamilton v. Maxwell

TYSON, J. The motion to require the plaintiff to pay certain costs as a condition to a further prosecution of his action is not incorporated in the bill of exceptions. The action of the court thereon is not, therefore, revisable. — Ewing v. Wofford, 122 Ala. 439, and authorities cited. Besides the record fails to set out the evidence introduced in support of the motion, if any was introduced. So if the motion appeared in the bill of exceptions, with no proof of the facts alleged in it appearing in the record, we would be compelled to sustain the rulings of the court Overruling it. The trial court committed no error in refusing to exclude the motion of defendants made in the attachment suit to substitute the writ of attachment and for a wirit of venditioni exponas directing the sheriff to sell the property levied upon as shown by the writ of attachment; nor in refusing to exclude the order of the [239] court tliereon. These records were clearly competent to show the recognition by -defendants of the validity of the levy of the writ of attachment by the constable and to- preclude ¡them from attacking it for invalidity. Having represented to the court by motion that the attachment had been levied and having procured from the court an order of -sale for the property, they cannot be ■allowed to avail themselves of itlie invalidity of that levy. — Hamilton v. Maxwell, 119 Ala. 26. We are- clearly of the opinion that a sufficient predicate was laid for the introduction of -secondary evidence of the contents of the venditioni exponas -and of its levy. Nor was there any merit in the objection that the ivrit of venditioni exponas is not -sli-OAvn to have been in any Avay connected with or to have grown out of the attachment suit. On this point we need only refer to the fact that the affidaidt- for the writ of attachment and the bond upon AAdiich the suit is brought, both bear date August 27th, 1891, and sIioav that the Avrit aa-as issued by E. E. Clayton, J. P., returnable to the Fall term, 1891, of the circuit court o-f St. Clair county, which facts are also sboAvn by the motion and the order of the court thereon granting the writ of venditioni ex-ponas. We are unable to determine from the objection -and motion Avhat portion of Maxwell's, testimony Avas ob: jected to. Clearly a part of it was entirely competent. The court beloAv was under no duty to separate the legal or competent from illegal or incompetent, and the objection, failing in this respect, was properly overruled. On former appeal in this case (Hamilton v. Maxwell, supra), it was held tha|t no -exemplary, vindictive or punitive damages are recoverable under the complaint. So, then, the plaintiff can, of course, recover only actual damages. The defendants filed a plea of -set-off, upon AAdiich issue ava-s ¡taken and the evidence Avithout conflict supports the [flea to the extent of $275.22. The actual damages sh-OAvn by plaintiff’s testimony to have been -sustained -by him, amounts to. $366.90, about AAdiich there is a -serious dispute in the evidence. The verdict of the jury assessed the plaintiff’s damages at [240] $258.38. The motion for a new trial, the overruling of which is assigned as error, should have been granted upon the ground assigned in it, that the damages assessed by the jury were exorbitant. We do not wish to be understood as committing ourselves to the meriitoriousness of the defendant’s piea of set-off.' — Hundley v. Chadick, 109 Ala. 575; Painter v. Munn, 117 Ala. 322. We express no opinion on that point. It is not raised, since the plea wag made material by issue having been taken upon it. We also* entertain the opinion that whether the attachment was wrongfully sued out was a question of fact for the determination of the jury. The general affirmative charge requested by defendants was properly refused. Reversed and remanded. DOWDELL and SHARPE, JJ. — If what is said in the opinion is to be construed as intimating that the plea of set-off is not a proper one in this action we wish to be understood as not concurring in such intimation. The question not being raised, any expression of opinion concerning the merits or demerits of the plea would be mere dictum.