55 Ark. 329 | Ark. | 1892
Lead Opinion
Under the rule stated above the appellee (if her right to damages was not affected by the levy of the executions) was entitled to recover the value of the goods at the time they were seized, with 6 per cent, interest thereon from that time to the date of trial, less the sum for which the property was sold by the sheriff, and deducting the amount of the plaintiff’s debt. The court’s charge permitted the jury to make a larger assessment, and was to that extent incorrect.
While it is apparent that the verdict was excessive, the evidence is not such as would furnish a safe guide in directing a remittitur. The judgment for damages will therefore be reversed, and the cause remanded for a new trial.
It is urged by counsel for the appellant that inasmuch as the defendant caused the goods to be levied on under executions issued on judgments confessed, she had no claim for damages. But as no question on this feature of the case was made in the court below, it has not been considered here..
Dissenting Opinion
dissenting. On the conceded facts before the court on the attachment issue, the trial judge could have legally reached but one conclusion—that is, that Mrs. Lee had committed a fraud which would have justified a creditor in suing out an attachment against her. I understand that to be the decision of the court in this case. But Blass was a creditor, and had sued out an attachment, and yet it is adjudged that his attachment shall be dissolved. The reason assigned for dissolving his attachment is that he failed to ask leave to make an amendment, which the court had no discretion under the circumstances to refuse. The granting •of the leave must have gone for the asking. The duty of the court then was merely perfunctory. To set the performance of such a duty above the merits of a controversy is to set form above substance—to make the manner of performance more material than performance itself.
The affidavit for attachment had served its office in laying the foundation for the issue of the writ. After that it was only a pleading—it stood as the complaint in the attachment branch of the cause. It was the subject of amendment like any other complaint. It ought, then, according to familiar practice in this court, to be treated as amended to conform to the proof. The statute requires a complaint in an ordinary action to - be sworn to. But that has never been held to prevent amendments by implication. If the plaintiff had amended his affidavit at the trial by substituting for the words “ is about to defraud ” the words “ has defrauded,” the judgment here would be different, without another line of proof. But the failure to make in writing this substitution must cause the plaintiff to lose the security he had obtained for his debt, and to be punished by a judgment for damages for doing that which the proof shows was justified. He suffers thus, not because he failed to establish his cause beyond all controversy, but because he neglected what was of no more practical utility than an obeisance to the trial court. I dissent.