Fidelity & Deposit Co. v. Walker

48 So. 600 | Ala. | 1909

DOWDELL, C. J.

The complaint as originally filed contained two counts, and was subsequently amended by adding counts, 3, 4. 5, and 6. A demurrer was filed to the first and second counts, assigning many grounds. The judgment entry recites, after amendment allowed to the first count, that the demurrer to counts 1 and 2 is sustained on the fourteenth ground, overruling all other grounds. It does not appear that any amendment was made or offered as to counts 1 and 2 after this ruling on the demurrer. The sustaining of any one ground of a demurrer to a count is as effective in putting such count out as would he the sustaining of all the grounds, if no amendment is made to meet the ruling on the demurrer. The ruling of the court below on the demurrer to the first and second counts being in favor of the appellant,'the appellant can take nothing by its assignments of error addressed to the action of the court on the demurrer to these two counts. .

The writ of injuction was obtained to restrain an attempted foreclosure of a mortgage under a poAver of sale contained in the mortgage. The bond sued on was given after the issuance of the Avrit and upon a decretal order of the chancery court, pending the injunction proceedings in that court requiring an additional bond. The condition of the bond is to pay all damages caused by the suing out of the injunction. By the condition of the bond damages prior to its execution, as Avell as subsequent, occasioned by the issuance of the writ, are included.

In the third and fourth counts, added by way of amendment to the complaint, the special damages claimed are for the alleged depreciation in value of property embraced in the mortgage. It is not averred that the plaintiffs, by the alleged depreciation in value of the property, were thereby deprived of their security for the mortgage debt. For aught that appears from the averments, except inferentially, the property, notwithstanding the depreciation in value, was more than sufficient to pay the mortgage debt, and, if so no damage resulted to the plaintiffs by reason of the depreciation in value. As was said in the case of Daniels v. Carney, 148 Ala. 81, 84, 42 South. 452, 453, 7 L. R. A. (N. S.) 920, 121 Am. St. Rep. 34: “Good pleading requires that the facts which constitute the cause of action relied on shall be stated in the complaint and not left in inference. Facts, when averred, may be established inferentially from other facts shown in evidence, but this is a rule of evidence and not of pleading.” For the omission to aver that the alleged depreciation in value so impaired the mortgage security as to defeat in whole or in part the collection of the mortgage debt, the count, was defective and subject to demurrer.

The special damages claimed in the sixth count., added by way of amendment, are for attorney’s fees paid or incurred in procuring the dissolution of the injunction. The claim is confined to attorney’s fees incurred in obtaining the dissolution, and was therefore free from objection on demurrer. Such damages are always deemed recoverable in a suit upon the injunction bond. The rule in respect to what fees are recoverable in actions of this hind is stated in the case of Jackson v. Millspaugh, 100 Ala. 285, 14 South. 44, See, also the. later case of Curry v. Mortgage Co., 124 Ala. 614, 27 South. 454.

The demands sought to be set off by pleas 1 and 3 are for damages for which the law gives a pecuniary standard of measurement, and are not claims sounding in' damages merely, and these pleas were not. subject to demurrer on that ground. — Debtor v. Henry, 144 Ala. 552, 39 South. 72, and cases there cited.

The defendant, as surety on the injunction bond, being sued alone, could, with the consent of his principal, set off a debt due from the plaintiff to him, the defendant’s principal, at the commencement of the suit. — Code 1896, § 3731. The pleas were not subject to any of the grounds stated. It is not necessary that the plea should show an eviction. “The covenant of warranty of title in a deed of conveyance is broken as soon as made, if there is a superior outstanding title, or an incumbrance diminishing the value of the enjoyment.” — Sayre v. Sheffield Co., 106 Ala. 441, 18 South 101; Copeland v. McAdory, 100 Ala. 553, 13 South. 545.

There are other assignments of error; but the views we have taken render it unnecessary to consider them, as the questions are such as are not likely to arise on another trial.

For the errors indicated, the judgment is reversed, a.ncl the cause remanded.

Reversed and remanded.

Anderson, McClellan, Mayfield, and Sayre, JJ., concur.