109 Ala. 575 | Ala. | 1895
This was an action on an attachment bond, and sought to recover damages for the wrongful suing out of the attachment. On the trial, the plaintiff offered in evidnece the affidavit, bond, and writ of attachment, with the marshal’s return thereon. Against the objection of defendants, the court admitted these papers in evidence. Ordinarily it is proper.for the plaintiff, in a suit on attachment bond, to give in evidence the record of the' attachment and the proceedings thereon. — Donnell v. Jones, 17 Ala. 639; Dothard v. Sheid, 69; Ala. 135; Boggan v. Barnett, 102 Ala. 400. In these papers, the defendant is styled Chadiek & Co., without further description or identification. The objections of defendants were illegality and irrelevancy, and because the papers showed that the attachment suit was against Chadick & Co., and not against Charles W. Chadiek, the plaintiff in this suit. In other words that there was a variance.
In the complaint, the plaintiff styles himself, “Charles W. Chadiek, heretofore doing business-under the firm name and style of Chadiek & Company;” and avers that the attachment bond was made by defendants and was payable t.o him, “under the name of Chadiek & Company.” If these allegations are true, the individual, Charles W. Chadiek, was entitled to sue on that bond. If the suit had been instituted in the name of Charles W.
The action was brought to recover damages for a mere wrongful attachment. The complaint does not aver that the attachment was vexatious, nor does it claim any punitive damages. The transcript shows that counsel for the plaintiff, in his argument to the jury,stated that “the action of defendants in this case showed vexatious, willful and malicious persecution of the plaintiff; that his character had been assailed, and that the jury ought
3. Witnesses for the defendants, in their depositions,, stated that Charles W. Chadick and W. G. Jamar composed the firm of Chadick & Co.; that the credit of that firm was based principally on the fact that said Jamar was a partner, &c., and that they derived this information from P. S. Plollins and others. In his argument to the jury plaintiff’s counsel said : “And it is remarkable that they did not put P. S. Plollins on the stand when he could be gotten in the court room in fifteen minutes.” Whereupon another of plaintiff’s counsel said, “Yes, I expect you will find him registered now at McGee’s hotel in the city.” On objection and exception to such arguments, the court stated to the jury. — “These arguments are not evidence.” There was no evidence of where Plollins was at that time. These remarks of counsel were not only “not evidence,” but they were not legitimate, and should not have been allowed. What the court replied to the objection raised by counsel was not sufficient to remove the prejudice that such remarks were calculated to excite in the minds of the jury.— Florence Cotton & Iron Co. v. Field, 104 Ala. 471; Bates v.
4. To justify an attachment there must be a debt due or to become due, and one of the enumerated statutory grounds must exist. If either of these be wanting in fact, — no matter how sincerely the attaching creditor may believe it to exist, — then the attachment was wrongful, but, without more, it is only wrongful. In such case, the measure of recovery in a suit on the bond is actual injury sustained. — City Nat. Bak v. Jeffries, 73 Ala. 190; Pollock v. Gantt, 69 Ala. 374; McLane v. McTigh, 89 Ala. 411; Durr v. Jackson, 59 Ala. 203; Gamble v. Hammerwell, 44 Ala. 336. Actual damages do notinclude “wounded feelings,” and the like; but are such as one has sustained in his . property, — his pecuniary loss. If one’s goods are taken from him under a wrongful attachment, and not returned, the measure of his recovery in a suit on the attachment bond, so far as the goods taken are concerned, is the value of the goods at time they were so taken from him, with interest to the time of the trial. And he may also recover for any other actual damages, — such, as x-easonable attorney’s fees incurred in defending the attachment suit, loss of credit, &c., — he may have sustained. In no event, of course, can a recovery be had for more than the amount of the attachment bond. — Fields v. Williams, 91 Ala. 505.
It has been held by us that if a defendant, as a mere trespasser, seizes personal property in the possession of and claimed by another, and has himself applied .the property seized by him to the plaintiff’s use, but without authority, and without the owxxer’s consent, express or implied, this fact is not available to him in mitigation of damages, when sued in trespass by the owner for taking the property, although the use to which the property was applied was the satisfaction of a debt due by the owner to a third person. — Bird v. Womack, 69 Ala. 392. The only diffex’ence between the taking of the goods of
5. That part of the court’s charge which instructed the jury that, if they found for the plaintiff, the measure of damage was the value of the goods at the time they were taken, was, under the principles we have announced, free from error, of which defendant can complain. There was some evidence tending to show that the levy was excessive ; and the evidence, on the other hand, tended to show that there was no excess of goods levied on, to satisfy plaintiff’s demand. If the defendants apprehended that the charge was calculated to mislead the jury, and prejudice them as to a consideration
6. We think there is nothing in the objection that the attachment papers do not show diverse citizenship. The complaint in attachment described the plaintiffs as“ David R. Rankin and Wm. P. Rankin, partners doing business under the firm name and style of Rankin & Company, and who are residents and citizens of the city of Nashville, State of Tennessee.” And the • defendants are therein described as “Chadick & Co., residents and citizens of the State of Alabama, in said Northern District of Alabama, and transacting business under the common name of Chadick & Co.” Thus, not only the residence but the personal citizenship of the parties is alleged.— Amory v. Amory, 95 U. S. 186 is not inconsistent with these views. In that case the averment was, “the plaintiffs, as such executors, are citizens of the State óf New York.” And the court said : “Where the jurisdiction of the courts of the United States depends upon the citizenship of the parties, it has reference to the parties as persons.”
1. It is also urged by appellants’ counsel that an attachment suit can not be maintained in the circuit court of the United States without the court’s acquiring jurisdiction of the person of the defendant by service of process. This question might arise if we had the entire record of the attachment suit before us. In its absence, for all we know, service of process may have been had, or defendant in attachment may have waived process by appearing and defending the suit. That court had jurisdiction of the subject matter. It assumed and exercised jurisdiction of the person, and in the absence of the record we presume that, in some legal way, it acquired jurisdiction of the person. The affirmative charge for the defendants was properly refused. As to
The other errors assigned, which we have not considered, will be treated as waived, since they were not insisted on in argument.
For the errors pointed out, the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.