Miller v. Garrett

35 Ala. 96 | Ala. | 1859

A. J. WALKER, C. J.

The proper parties plaintiff, in an action upon a penal bond, are the obligees, notwithstanding they may have severally sustained distinct injuries. Gayle v. Martin, 3 Ala. 593 ; Boyd v. Martin, 10 ib. 700. And if one of the obligees be the wife of another, she may be joined as a plaintiff with her husband. — Pickens v. Oliver, 29 Ala. 528 ; Jordan v. Hubbard, 26 Ala. 238. The above stated principles are conclusive, to show that the court did not err in refusing those charges which assume that a recovery could not be had in this action for damages sustained exclusively by one or a partof the plaintiffs, and that the feme covert could not join in the suit.

Every one of the plaintiffs in this case was interested in the damage resulting from the liability to costs in the detinue suit. The questions of this case arise upon refusals to charge. None of the charges refused raises the question of the right to join an obligee, as a party plaintiffj who had sustained no damage whatever, and who was totally uninterested in the case. We therefore express no opinion as to the right of joining a party so situated. — See Code, § 2129; Skinner v. Bedell, 32 Ala. 44.

[2.] Under the decision in Garrett & Hill v. Logan, 19 Ala. 344, a liability for the counsel fees, without an actual payment of them, would authorize a recovery of them in this suit on the bond. The principle upon which the decision of that point, in the case just cited, is based, is, that a liability for expenses incurred is such actual damage as may be recovered in the action on the bond. That principle is correct, and is sustained by the authorites.— Sedgwick on the Measure of Damages, 106 ; Richardson v. Chasen, 10 Q. B. R. (59 E. C. L. R.) 756; Dixon v. Bell, 1 Starkie’s R. 287; Pritchett v. Boevey, 1 C. & M. 775. Upon the principle just stated, the plaintiffs had a right to recover the expenses and costs for which they had incurred a liability, notwithstanding they had not been actually paid. This would not be the case, if the plaintiffs in their pleading had only alleged a payment in money; but the complaint in this case is adapted to the recovery of costs and expenses for which a liability has merely been incurred.

[3-4.] The last charge asked was to this effect, that the action of detinue having been dismissed at the costs of the plaintiff in that action, and the entire costs being sixteen dollars, the plaintiffs in this suit could not recover upon the bond the whole costs of the detinue suit. The condition of the detinue bond is, to pay such costs and damages as the defendants might sustain by the wrongful complaint. The plaintiffs costs in the detinue suit can, in no sense, be costs sustained by the defendants in that suit, it having been dismissed. The defendants are not liable for the plaintiff’s costs in the dismissed detinue suit, and, indeed, cannot in any way be made responsible for them. The defendants in the detinue suit are only liable for their own costs,and they have no reason to be concerned about the plaintiff’s costs in the detinue suit. The proposition, that the plaintiffs were not entitled to recover the whole costs in this case, asserted by the charge, is strictly true. But, if this charge had been given, it could only have contributed to confuse the jury; for it would have made it their duty to have refused an allowance to the plaintiffs of a part of the costs, without affording any means of ascertaining what part of the costs should be, and what part should not be allowed. It would have left the jury to determine upon this point by mere guessing. The charge required explanation, and, without explanation, would have confused the jury. There was no error in the refusal to give such a charge. — Godbold v. Blair, 27 Ala. 592; Partridge v. Forsythe, 29 Ala. 290.

Judgment affirmed.