70 Ala. 308 | Ala. | 1881
The demurrer to the complaint rests on the hypothesis, that an attachment suit is not commenced until there is a levy of the writ. The levy is certainly essential to give the court jurisdiction to proceed to judgment against the defendant. It stands in the place of personal service, upon the presumption that the defendant, because of his relation to his property, will be put upon inquiry concerningit, and, being ¡mt on inquiry, will acquire notice and knowledge of the process under which it is drawn into the custody of the law.—Grier v. Campbell, 21 Ala. 327. The suit, however, is commenced by the issue of the writ, the first movement in the exercise of the
The damages recoverable for the wrongful or malicious suing out of the writ would, of course, be materially lessened, if there was no levy. There would not be a wrongful seizure and detention of the property of the defendant, and he would not be drawn into the trouble and'expense of making defense. But, if special damages accrued to him, such as injury to his credit, which may be a proximate consequence of the wrongful suing out of the writ, these would be recoverable, though it was not levied.—Goldsmith v. Pickard, 27 Ala. 142. The damages claimed, in the present complaint, are for expenses incurred in the defense of the attachment suit, and for injury to credit because of the suing out of the writ. If the demurrer had been directed only to the parts of the complaint claiming damages for expenses in the defense of the attachment suit, it ought to have been sustained. Unless the attachment had been levied, such expenses were not a consequence of its issue. Into them the defendant could have been drawn only by his voluntary appearance and submission to the jurisdiction of the court; and by his own voluntary act he can not subject the defendant to damages which would not have resulted otherwise.—Seay v. Greenwood, 21 Ala. 441; Loker v. Pawson, 17 Pick. 284. But, as the complaint also claims damages for injury to the credit of the plaintiffs, which may have resulted from the mere issue of the writ, the demurrer to the entire complaint was illy taken.
It appears from the evidence, that the attachment was levied by the summons of garnishees, who were supposed to be indebted to, or to have effects of the defendants in possession. These garnishees were discharged, on their answers denying indebtedness; and the plaintiff, of consequence, failed to obtain judgment. This was a sufficient levy, though it may have proved valueless, to authorize suit on the attachment bond. The cause was thereby placed in a condition in which further proceedings must have been had; and it is not for the ¡fiaintiff, causing the issue and levy of the writ, to assert the insufficiency of the levy to support a final judgment against the defendant,
It is settled here, that reasonable and necessary counsel fees, incurred in defending the attachment suit, are recoverable as actual damages, whether the attachment is merely wrongful, or wrongful and malicious.—Marshall v. Betner, 17 Ala. 832; Seay v. Greenwood, 21 Ala. 441. But the counsel fees now claimed were not incurred in defense of the attachment suit, but by the garnishees, or rather in defense of the garnishees. To the attachment suit the defendant never appeared or pleaded. Defense of the garnishees, though successful, and resulting in preventing a judgment against the defendants for the debt, was, as was said in-Hamner v. Pounds, 57 Ala. 347, merely gratuitous, and thereby no liability could be fastened on the obligors in the attachment bond.
In this action, it is necessary the plaintiff should, by appropriate averments, negative the truth of the particular fact or facts stated in the affidavit as the ground of attachment. The averment, though negative in form, and though it may involve the proof of a negative, casts upon the plaintiff the burden of proof; aird he must, by evidence, either direct, or of circumstances from which it is a fair inference the facts did not exist, satisfy the jury there was not the specific cause of attachment. Tiller v. Shearer, 20 Ala. 507; O'Grady v. Julian, 34 Ala. 88; Durr v. Jackson, 59 Ala. 203.
The fact that, in the defense of this suit, the defendants insisted plaintiffs had been guilty uf a fraud which justified the suing out of the attachment, the- Circuit Court in effect ruled, was a circumstance tending to show that they were actuated by malice in suing out the writ. If the evidence was satisfactory that there was no probable cause for suing out the writ, or that the defendants had subsequently come to the knowledge of facts which 'ought to have satisfied them the plaintiffs had not been guilty of fraud, persisting in the accusation is a fact which may be considered in determining whether they were not malicious or reckless in the commencement of the suit. Subsequent conduct often affords evidence of the motives by which former conduct was influenced. But the mei’e fact that the defendants attempted to prove fraud, and thereby show probable cause for the issue of the attachment, is not, of itself, a fact on which a fair inference of malice can be based.
The instruction given by the Circuit Court, in reference to the injury to the credit of the plaintiffs, is abstract. The bill of exceptions purports to set out all the evidence, and there was none introduced tending to show the plaintiffs had suffered in credit because of the issue of the attachment.