Baldwin v. Walker

94 Ala. 514 | Ala. | 1891

WALKER, J.

— A party is in no position to complain of statements of fact called out by his own questions. The defendant’s comprehensive request in his second cross-interrogatory, that the plaintiff “tell all about it,” justified the plaintiff in giving her own version of the matter inquired about. .Most of her answer was fairly responsive to the question. It was unobjectionable so far as it was a statement of facts pertinent to the matter of inquiry. But the plaintiff’s statement as to what she had said to others about ending her days in Montgomery was not responsive to the interrogatory. They were mere expressions of intention made before the attachment was sued out. The rule against the admissibility of such declarations in a party’s own behalf was stated in the opinion in this case on the former appeal. — Baldwin v. Walker, 91 Ala. 428. The defendant’s motion to exclude that part of the answer to the second cross-interrogatory should have been granted.

The witness Wharton stated, that he knew that the plaintiff was not about to remove out of the State on the 29th of March, 1888. This could have been no more than the opinion or conclusion of the witness drawn by him from the facts. It is for the jury to decide such conclusions from the facts proved before them. The verdict should, not be merely the echo of the opinions or inferences of witnesses, and such evidence should be excluded. — 3 Brickell’s Dig., p. 436, §§ 426 et seq.

Evidence was admitted, without objection, that the plaintiff did leave the State in the summer of 1888. It might be contended for the defendant that this was in pursuance of a purpose, entertained by the plaintiff before the suing out of the attachment, to remove from tne State. It was competent to rebut such evidence by showing that it was plaintiff’s habit to leave Montgomery on a visit every summer. The proof of such a habit would tend to explain a fact which might otherwise be treated by the jury as evidence of a permanent removal. When the question is whether or not a person was about to remove from a place at a certain time, it is plain that his actually leaving such place a few months thereafter would have less weight as evidence of a permanent removal if he had frequently gone off on a visit at that season of the year, than if his going away was an unusual occurrence.

The testimony of the plaintiff tended to show that her interview with the witness Boquemore, in regard to the sale of her house, was prior to the suing out of the attachment. Though that witness himself stated that the conversation to which he testified was had at a date subsequent to the issue of the attachment, yet, as the evidence as to the date of the interview was conflicting, the question as to when it occurred should have been submitted to the jury, with instructions not to consider the plaintiff’s statements to the witness Roquemore as evidence against her, if their conclusion from the evidence was that such statements had not been made until after the attachment had been sued out. As there was evidence tending to show that the statements of the plaintiff to the witness Roquemore were admissible against her, as having been made prior to the date of the attachment, it was error to exclude the testimony of that witness.

A defendant in'án attachment suit may employ an attorney to look after his interests, and to see that his rights are properly guarded, even though no issue can be made in that case as to the existence of the ground of attachment, though no defense can be made to the claim sued on, and though no ground for quashing the attachment may.exist. It is not unreasonable for one whose property has been seized under legal process, to employ counsel to protect it as far as the law may justify, though there may be no possibility of defeating the proceeding. The question of the propriety of incurring such expense does not depend upon the defendant’s ability to make a successful defense. One whose property is in the clutches of the law may seek professional aid to secure whatever measure of protection the law may afford. Though it may not be necessary or proper to undertake' a defense of the suit, the defendant may still have counsel to watch its progress, and to see that mo undue advantage is taken of him. If property is involved in the suit as a result of a wrongful levy of process upon it, the necessary expense of employing counsel to secure its protection so far as the law may permit may, in the opinion of the writer, be regarded as a natural consequence of the wrong. I think that reasonable and necessary counsel fees paid or incurred for such services as could properly be and were in fact rendered by the attorney in looking after the attachment for the defendant, are recoverable as damages in a suit on the attachment bond, if the attachment was merely wrongful, or was wrongful and malicious (Flournoy v. Lyon, 70 Ala. 308 ; Dothard v. Shied, 69 Ala. 135; Seay v. Green-Wood, 21 Ala. 491; Marshall v. Betner, 17 Ala. 832); and that there was no error in admitting evidence tending to show the employment of an attorney in the attachment*suit, or in refusing to give charges 6, 8, 9, 10 and 11 requested by the defendant. Of course, in estimating the value of the professional services rendered, due regard should be had to the circumstance that no defense was made, and that nothing more could be done than to guard the rights of a losing party. The majority of the court, however, hold that on the evidence in this case the plaintiff is not entitled to recover damages on account of the attorney’s fees.

Without noticing all the defects in the several other charges requested by the defendant, the refusal of the court to give them may be justified on the following grounds respectively: Charge 1 was defective in pretermitting all inquiry as to whether the agent was diligent to ascertain the truth of the facts laid before counsel, and as to his good faith in acting on the advice when given. — Steed v. Knowles, 79 Ala. 446. Charge 2 was incorrect in asserting that the plaintiff had no right to sell the property, and could not be injured by a levy made upon it, because her title to it was derived through the will of her husband, and .it was liable for his debts. If the title was in her, she could sell the property, subject to the liability for the debts of the decedent. Charge 3 asserts that, when an attachment is sued out by an agent, actual damages only can be recovered in any event. If the attachment was wrongful, and was sued out without probable cause, and the principal with full knowledge ratified the act of the agent, then the recovery was not limited to actual damages. — Baldwin v. Walker, 91 Ala. 428. This charge ignored the question of ratification and the evidence on that subject, .as do also charges 4, 5 and 7. On the last trial, there was evidence tending to show that, after the attachment was sued out, the principals were fully informed of all that was done by the agent in reference thereto, and of the grounds upon which he acted, and that they ratified his conduct. In this respect, the case presents a different aspect from that presented when it was in this court on the former appeal.

For the errors above noted, the judgment must be reversed, and the cause remanded.

Reversed and remanded.