Calhoun v. Hannan & Michael

87 Ala. 277 | Ala. | 1888

McCLELLAN, J. —

Many of the assignments of error are predicated upon the rulings of the primary court on the sufficiency of pleadings and the admissibility of evidence, having reference solely to the defendant’s liability for punitive or exemplary damages. The matters presented by the pleadings in this behalf, and the evidence in support or denial of them, were material only upon the assumption, that none of the statutory grounds for the issuance of the attachment existed, and that the writ was, therefore, wrongful. However malicious and vexatious the suing out of the writ may have been, the plaintiff was not entitled to recover in this action, unless it had been shown its issuance was also wrongful, in the sense of not being based upon some one of the facts which authorize a resort to this extraordinary process.

In determining this primary question of the rightfulness of a resort to the writ, neither the allegations nor proof, in respect to facts which go only in aggravation or mitigation of the act complained of, can exert any legitimate influence in shaping the issue, or on the minds of the jury. There must be an unlawful act, before the good or bad faith with which the act was done can become a material inquiry. —City Nat. Bank v. Jeffries, 73 Ala. 183; Jackson v. Smith, 75 Ala. 97.

The verdict was in ■ favor of the defendants. This was a determination that the attachment was rightfully sued out. A different finding could not have been reached or justified by a consideration of any conceivable state of pleadings or proof in regard to malice or vexation. The action of the court on these matters could have had no effect on the verdict; and whatever might have been the conclusion of the jury as to the existence vel non of bad faith or recklessness on the part of the plaintiff in attachment, no recovery could have been had. The rulings of the City Court, therefore, on the demurrers to plaintiff’s replications, on the admissibility of evidence as to the attachment having been sued out by advice of counsel, on the charge requested by the plaintiff, and on the third, fourth and fifth charges requested by the defendants, which replications, evidence and charges related exclusively to exemplary damages, if erroneous, were without injury to the appellant, and furnish no ground for a reversal of the judgment. — Foster v. Johnson, 70 Ala. 249; Thomason v. Gray, 82 Ala. 291.

The error, if error there was, in sustaining demurrers to plaintiff’s first and third replications to the third plea, is shown to have worked no detriment to the appellant, by the further fact that these replications were redrawn, so as to obviate the infirmity pointed out by the demurrer, again filed, and the benefit of the matters, set up by them fully secured to the plaintiff. —Phœnix Ins. Co. v. Moog, 78 Ala. 284; Owings v. Binford, 80 Ala. 421.

The charge requested by the plaintiff was not supported in all of its hypotheses by the evidence, and the court’s refusal to give it may also be justified on this ground. The charge was abstract.—Williams v. Barksdale, 58 Ala. 288; 3 Brick. Dig. p. 133, §§ 106 et seq.

There was no error in disallowing plaintiff’s challenge of the juror, who was an employee of the defendants in another suit brought by the plaintiff in this action, involving the same issues, pending in the same court, and set down for trial on the same day as this case. The facts shown were sufficient to support a challenge for favor, the effect of which is to require an investigation by the court into the question, whether the juror is biased in point of fact; but, of themselves, they are not sufficient to show this, or to raise a disqualifying presumption of bias. — Thompson & Mer. on Juries, 170, 171; Brown v. Wheeler, 18 Conn. 199; Strawn v. Cogswell, 28 Ill.; Com. v. Boston R,. R. Co., 3 Cush. 25.

The objection to the testimony of Leinkauff, as to certain notes purporting to be signed by the plaintiff and another, and to the introduction of the notes themselves in evidence, was too general. If these notes were, what they appeared to be on their face, the obligations of the plaintiff, and if they were held by the witness, as he testifies, at the time of the attachment, they were admissible, as showing indebtedness of Calhonn at the date of the writ, which is also shown to have been the time at which the execution of the conveyance by plaintiff to his wife was perfected. The real objection to this testimony lay in the fact that the execution of the notes was not proved. This infirmity was not suggested in the objection actually made, and there was no error in overruling the very general and indefinite objection which was made. Dyer v. Lewis, 57 Ala. 551; Steele v. Tutwiler, 57 Ala. 113; Tus. Cot. Oil Co. v. Perry, 85 Ala. 158.

The fact that property has been conveyed on the recited consideration of an antecedent debt, by one otherwise indebted, raises a presumption of unfairness and mala fides, and casts upon the debtor, as between him and creditors who attack the conveyance for fraud, the onus of showing that the sale was fair, and made in good faith; and this he must do more fully and clearly, when it is shown, as here, that the conveyance was made to a relative. The first charge given at the request of the defendants was a correct exposition of this principle. — Pollak v. Searcy, 84 Ala. 259; Tutwiler v. Munford, 68 Ala. 124; Dudley v. McKiernan, 62 Ala. 34; Garrett v. Garrett, 64 Ala. 263.

The burden of proof being on the plaintiff to show the falsity of the affidavit in respect to the ground alleged for the issuance of the attachment, he must reasonably satisfy the minds of the jury in this regard. Manifestly, if their minds are left in a state of confusion and uncertainty on this point, the plaintiff has failed to make out this very essential part of his case, and can not recover. The second charge given at the request of defendants was, therefore, when referred to the evidence, free from error.- — Durr v. Jackson, 59 Ala. 203.

Affirmed.