59 So. 379 | Ala. Ct. App. | 1912
If, as is. alleged in the third count of the complaint, the appellant owed none of the appellees anything, and if the appellees, as alleged in the complaint, knowingly, willfully, or intentionally sued out a writ of garnishment and had the writ levied upon the appellant’s wages, for the purpose of extorting from him money to the amount of $25, the law certainly furnishes the appellant with a remedy, viz., a special action of trespass on the case for such an unlawful abuse of legal process to the appellant’s injury. If the appellant owed nothing to the appellees, and they procured the garnishment to issue for the purpose of extorting money from him, then there was an absence of probable cause and no grounds for procuring* the writ of garnishment to issue; and, if done to “extort money” from appellant to which appellees had no right, the act was maliciously done, within the meaning of the law. — Brown v. Master, 104 Ala. 451, 16 South. 443.
1. There is in the record a judgment which was rendered by E. I-I. Lopez, a justice of the peace, against the appellant in favor of Stansberry,, one of the appellees. It appears from the justice’s docket that before the rendition of the judgment a writ of garnishment had been issued in the case at the suit of Stansberry, and served upon the Tennessee Coal, Iron & Railroad Company, of which the appellant was an employee. This garnishment writ was made returnable June 7, 1911. On the 25th day of May, 1911, the judgment in favor of Stansberry was rendered by the justice against the appellant, and the following is quoted from the judgment entry: “Comes the defendant [appellant in the instant case] into open court this 25th day of May, 1911, and confesses judgment for the'amount. of $30 and the costs, with waiver of exemptions, and accepts a release for all but $8.50. May 25, 1911. By order of plaintiff’s attorney defendant released for .all but $8.50.”
The above judgment was for $30 and the costs, and on the face of the judgment entry the true judgment
2. The third count of the complaint charges the appellees with using the process of a court for the purpose of fraud and oppression — for the purpose of “extorting
“As a general rule, great latitude is allowed in the range of evidence when the question of fraud is involved. It is indispensable to truth and justice that it should be so; for it is hardly ever possible to prove fraud, except by a comprehensive and comparative view of the actions of the party to whom the fraud is imputed, and his relative position a reasonable time before, at, and a reasonable time after, the time at which the act of fraud is alleged to have been committed.”— Snodgrass v. Branch Bank, 25 Ala. 161, 60 Am. Dec. 505.
It therefore seems, from the above, to follow as an irresistible conclusion that on the question of fraud and oppression — on the question as to whether the appellees in fact, through the process of a court, undertook knowingly, intentionally, or willingly to extort money from the appellant — the trial court committed an error in excluding from the jury the statement of appellant that he exhibited to one of the appellees the receipts from Stansberry, which were afterwards introduced in evidence, and that it committed reversible error in giving to the jury, at the written request of the appellees, the affirmative charge in their behalf. This charge, we presume, was given on the theory that the judgment in the court of Justice Lopez Avas a judgment for $30 reduced by $8.50, and not to $8.50.
In the above opinion we have confined ourselves to a discussion of the legal principles involved, and intend, in no way, to intimate an opinion as to the sufficiency of. the evidence to establish the issues of fact presented by the pleadings. Under the evidence as we construe the judgment in the case of Stansberry v. Dudley, upon which the writ of garnishment was issued, and the issuance and levy of which brought about this litigation.
It follows, from what we have above said, that, in our opinion, the judgment of the court below should be reversed, and the cause remanded for further proceedings in the court below.
Reversed and remanded.