McLean v. Wright

TYSON, J. This action is brought upon an attachment bond, and seeks to recover damages for an alleged breach of it. The complaint as originally framed contained only onei count. 'That count was amended as was the complaint by the addition of a second count, A demurrer to both counts was sustained and, plaintiff declining to plead over, judgment was entered for defendant. Appellant's counsel in their argument only insist upon the sufficiency of the adder! or second count. The bond, the foundation of the suit, is set out in full as also is the affidavit upon which the writ of attachment was procured. In the body of the; former only the name of the; principal appears and its condition is to pay' all such damages as the plaintiff in this suit may sustain by the wrongful or vexatious suing out of the attachment writ, etc. The affidavit discloses no statutory ground existing for the issuing of the1 attachment. The complaint, however, avers; that the atachment was procured upon the filing of the bond and affidavit and that no statutory ground existed for its issuance. It also avers the levy of the writ upon a. stock of goods belonging to plaintiff. etc. to her damage, etc. The first ground of the demurrer challenges the Yal’difv of fhp bond on fho {rrvrnml that, tup name of two of the defendants, who signed it, as sureties, at.the bot [648] tom, do not. appear in its body. There! is no merit in this objection. — Grimmet v. Henderson, 66 Ala. 521. Other grounds raise an objection to the validity of the bond on account of the defect, in the affidavit pointed out above. It is true section 527 of the Code imposed the duty upon the officer before issuing the attachment in this case to require the plaintiff to malee affidavit that one of the statutory grounds (§ 525 of Code) existed, but we apprehend that his failure to do so or his issuance of the writ- upon an affidavit not complying with the requisitions of the statute, cannot relieve the obligors on the. bond, also given as required (§ 528 of Code) as the condition to its issuance of their contractual undertaking to pay plaintiff all such damages as she may sustain by the wrongful or vexatious suing out of the attachment. Their undertaking is valid and binding although the writ may be; quashed upon proper steps taken by defendant in the attachment case unless the affidavit be amended, which can he done. — § 564 of Code. Indeed if the statute permitted no amendment of the affidavit, so as to cure the defect and the. writ was void this would not destrov the binding efficacy of the bond. — Zechman v. Hoak, 85 Wis. 656. As said in that case: “It was voluntarily entered into- by defendant for the purpose of procuring the seizure of plaintiff’s nroperfv under the writ of attachment and it accomplished that result, to the great, daanage and injury of plaintiff. * * * Why should he he relieved from liability merely because the seizure of plaintiff’s property he thus procured to be made was1 illegal? It seems to us that such illegality is am unanswerable reason why he should he held liable’.” At best, the defect under our statutes, being curable by amendment, it amounts to no more than a mere irregularity of which the defendants of course cannot take, advantage. — Brown v. Tidrick, 85 N. W. Rep. 185. On the averments of the complaint it is entirely clear tiuu the plaintiff is entitled! to recover at least nominal damages and reasonable, counsel fees alleged to have been incurred bv her in defending the attachment, suit, which we hold is sufficiently averred. [649] have examined the other grounds of the demurrer and find no merit in any of them. Reversed and remanded.