6 Ga. App. 114 | Ga. Ct. App. | 1909
Hammond sued out an attachment .against the Malone & Grant Company, -a partnership composed of George Malone and A. G. Grant, residents of the State of Alabama. The .attachment was leyied by summons of garnishment on D. S. Sheffield. The declaration in attachment makes in substance the following case: On September 2, 1907, the petitioner purchased from Henry Paul English one bay horse mule named Ed, the reasonable value of which on said date and on February 6, 1908, was $200. On February 6, 1908, this mule was “in the legal, lawful, rightful, and proper possession of the petitioner,” and on that date the Malone & Grant Company, “without any authority whatsoever of law,” and while petitioner was asleep at his home, sent an agent (whose name is unknown) to the petitioner’s premises, who tore down petitioner’s lot fence and seized and carried away the mule to Columbia, in the State of Alabama. Petitioner charges, that by these acts of the defendants through their agent, he was “illegally, unjustly, and wrongfully deprived of the possession of his mule,” and that therefore the defendants have become indebted to'him in
The Malone & Grant Company appeared, filed a demurrer, and made answer to the suit. The demurrer was general and special, and the petition was amended to meet the special demurrer in certain respects. The grounds of special demurrer point out alleged defects in the petition, as to which no amendments were offered, these defects being as follows: (1) From the second to the seventh paragraph of the declaration, both inclusive, the facts alleged do not support the plaintiff’s claim, that the defendants are indebted to him in the sum of $300, or $200, or in any other amount, and show that he is not entitled to maintain an action of assumpsit; that his remedy, if any, is an action ex delicto, and not ex contractu. (2) The plaintiff does not state in the eighth paragraph of his declaration “when, how, or in what manner the defendants caused him to lose his time, or why it was necessary for him to do so;” no facts are alleged in support of the bare assertion that his time was worth $1.50 per day, or that his lost time amounted to $15. “Plaintiff’s dost time’ is not an element of damage recoverable in this suit, considered as an action ex delicto, nor do the facts alleged support any implied promise made by the defendants to pay for his lost time in whole or in part.” (3) The ninth paragraph of the petition is defective in that it does not disclose “why, when, or in what manner, or for what purpose the plaintiff was forced to make two- trips to Blakely and one trip to
The voluminous assignments of error merely tend to obscure the simplicity of the real issue in this case; and if the ingenuity of learned counsel has discovered any error of law committed by the court in the trial, such error, in view of the facts, is immaterial and in no wise tends to invalidate the verdict on the essential facts and the law applicable thereto. The defense made was wholly insufficient to justify the unlawful, forcible, and wrongful seizure of the mule by the agents of the defendants while in the possession of the plaintiff. This seizure, under the facts and the law, simply amounts to trespass on personalty. Conceding that the defendants held a mortgage on the mule, executed by one C. C. White, who, at the date of the mortgage, was the owner thereof, and that under the law of Alabama this mortgage placed in them the legal title to the mule, yet after this mortgage was executed in Alabama the mule was brought into the State of Georgia and here sold to English, who subsequently sold it to the plaintiff. There is no pre
Of course, the proceedings in detinue, instituted in Alabama, after the mule had been wrongfully taken from the possession of the plaintiff in Georgia, and taken by the defendants’ agent to Alabama and there delivered to the deputy sheriff, and any judgment in favor of the defendants, rendered by the court in such proceedings, could not affect the right of the plaintiff in this case, as he was not a party to such proceedings. These proceedings seem merely to have been instituted for the purpose of giving some legal coloring to the wholly illegal and wrongful possession of the mule by the defendants. We conclude by stating that we are clear that the plaintiff was entitled to a verdict for $200, which was the proven value of the mule when wrongfully seized and taken out of his possession By the defendants through their agents.