Hays v. Anderson

57 Ala. 374 | Ala. | 1876

STONE, J.

The present suit is on a’garnishment bond, given under section 2892 of Revised Code, to obtain process of garnishment in aid of a pending suit commenced by summons and complaint. The condition of such bond is to prosecute such suit to effect, and pay the defendant all such damages as he may sustain from the wrongful or vexatious suing out of such garnishment. — Revised Code, § 2931.

In the case of Pounds v. Hamner, at the present term, we said the damages, for which the bond in garnishment is intended to provide an indemnity, are those sustained by the defendant to the suit, not the garnishee. We said, further, that the defendant in the suit is under no obligation to defend the garnishee; and that, for such gratuitous defense, if made, he can not charge the makers of the,bond. Such defense is not covered by any condition of the bond. In that case, as in this, the main suit, and with it the garnishment, had been dismissed by plaintiff. So one condition of the bond — to prosecute to effect — had been broken. We there said : “ The defendant in the suit, however, can be injured. If the garnishee be in fact indebted, the result will be to tie up the claim, and delay its collection until the garnishment suit is-determined. From this necessary result, some damage will be done the defendant; and it may be that the whole debt is thereby lost to him. Garnishment being a species of attachment, its tendency is to harrass, and in some degree to bring odium on the defendant. On these accounts, it is, that action is given to defendant, if the garnishment be wrongfully or vexatiously sued out. If the garnishment be simply wrongful, the measure of damage and of recovery will be the actual injury sustained; and nothing will be allowed for injured feelings.—Floyd v. Hamilton, 33 Ala. 235. .If it be also vexatious, a different rule prevails. Exemplary damages may then be recovered — the amount to be determined by the jury in their discretion.”

In Barber v. Ferrill, at the present term, we said: “If there be ground for the process of garnishment, then the condition of the bond is broken, and the bondsmen are liable for the actual damages caused by its issue. If the resort to this process be vexatious, as well as wrongful, then vindictive- or exemplary damages may be recovered.”

Eor the defense of the original suit, for the defense by the present plaintiff of the garnishment suit, and for the expense of bringing the present action, the plaintiff has no right to recover. It will thus be seen that several of the breaches-averred in the complaint are not well taken. Still, there are some breaches well assigned; and, under the present complaint, the plaintiff shows at least a right of recovery to some extent. When a complaint or count contains good and bad breaches, the error can not be reached by a demurrer to the-complaint or count. — 1 Brick. Dig. 326, §§ 261, 264.

The demurrer was improperly sustained, and the judgment-of the Circuit Court is reversed and the cause remanded.