41 Fla. 471 | Fla. | 1899
This writ of error is taken from a judgment of the Circuit Court of Duval county, rendered by a referee June 28, 1894, in an action at law to recover damages upon an attachment bond executed by Frederick A. Gonzales as principal, and Harry Mason and Charles Blum as sureties, payable to defendant in error, conditioned in accordance with the requirements of the statute to “well and truly pay all costs and damages the defendant may sustain in consequence of improperly suing out” a certain attachment against the goods and chattels of defendant in error by Gonzales. The declaration alleged the giving of the bond, the condition thereof, that the attachment was shown and proven to have been improperly sued out by the result of a trial had May 25, 1892, when Gonzales had to dismiss and did dismiss his suit on which said attachment was grafted, and with which it was connected, a part and parcel thereof, and claimed as damages sustained in consequence of improperly suing out the attachment, among other
The record here does not show whether the principal suit was begun by the attachment, or whether the latter was sued out after the institution of the former. The writ was levied upon certain cigars and tobacco belonging to defendant in error which remained in the hands of the officer for about ten months, when, on motion of Gonzales, the principal suit was dismissed at his cost, with an order to the officer to< deliver the attached property to defendant in error. From the evidence it appears that a motion to> dissolve the' attachment was filed, but the grounds of this motion are not stated, nor does it appear that any expenses or attorney fees were incurred in relation thereto. From the record' it appeal's that the attachment was ipso facto dissolved by the dismissal of the principal suit; and that the dismissal of the latter was a .voluntary act on the part of Gonzales. The referee found that the value of the goods attached was $750; that they were not materially damaged between the time of their seizure and the delivery to defendant in error on May 25; 1892; that the measure of damages to be recovered by defendant in error was the interest on the value of the goods for the time they were in the custody of the sheriff, and costs and expenses, including attorneys’ fees, of procuring the release of the property from the attachment, and rendered judgment against plaintiffs in error for $233.50. The latter moved for a new trial on several grounds, one being that it was error to charge-them with liability on the attachment bond for charge, cost and expenses incurred in defense of the assumpsit suit,. another that the judgment was contrary to the evidence.
Several grounds of error are assigned, but we do not
I. Without expressing an opinion as to whether the debt alleged to be due Gonzales from defendant in error can properly be pleaded as a set off by Gonzales in an action against him and his sureties upon the attachment bond, we are of opinion that the demurrer to the plea of set off was properly sustained because the plea is wanting in certainty. The plea must describe the debt intended to be set off with the same certainty as in a declaration for the like demand. 1 Chitty’s Pleadings, 601; 22 Am. & Eng. Ency. of Law, p. 335; Form of plea of set off, sec. 1075, p. 386, Rev. Stats. There are no allegations in this plea equivalent to the common counts in a declaration or to special counts upon like causes of action. The items of set off are stated generally with no particulars as to the manner in which the amounts claimed became enforceable obligations between the parties. If the items sought to be set off can properly be recovered under the common counts in a declaration, the plea should be as full and explicit as the common count applicable; if they can be recovered only upon a special count, the plea should be as full and explicit as a special count would be required to be. This is necessary, that the opposite party may be advised of what he is required to meet and that he may file an appropriate replication upon which to frame issues.
II. The motion for a new trial ought to have been granted. The only evidence relative to damages claimed on account of costs, expenses and attorneys’ fees was the testimony of T. F. McGourin, a witness for defendant in error. Upon his direct examination he was asked if defendant in error had been to any cost and expense
The defendant in error insists that attorneys’ fees
In disposing of the case upon the points presented we do not wish to be understood as holding that the declaration in this case states a cause of action, for under the decision in Steen v. Ross, 22 Fla. 480, it is, to say the least, doubtful whether any breach of the attachment bond is alleged. Inasmuch as the parties have not suggested the point, and it is not entirely free from doubt, and we find other good grounds to reverse the judgment, we do not decide it, but leave the parties to
The judgment is reversed and a new trial granted.