Nelson v. Rothschilds

62 So. 288 | Ala. Ct. App. | 1913

PELHAM, J.

The action was brought in the trial court by the appellant to recover damages of the appel-lees for the breach of the conditions of a garnishment bond executed by the appellees. The complaint as ■originally filed contained three counts; these counts, after alleging the giving of the bond and averifing that the conditions of the bond had been breached and that the plaintiff had sustained certain damages by reason thereof, undertook to set out in separate paragraphs the •different breaches relied on in the several counts of the complaint, and in certain of them alleging the facts relied upon as showing wherein the writ of garnishment had been wrongfully and vexatiously sued out.

The judgment entry set out in the record shows that the defendant’s motion to strike the complaint (which motion is also shown by the record) was granted, and “to this action of the court, and the striking of the complaint as a whole, and as to each assignment of breach in each count of the complaint, separately, and each separate count of the complaint,” the plaintiff duly reserved an exception.

Although the different assignments of the breach of the bond, including that one designated by the letter “e” in each of the different counts of the complaint, which seems to have been the storm center of the contention on the pleadings, were not good assignments (and we do not think they were), yet the erroneous action of the court in striking the plaintiff’s entire complaint on defendant’s motion cannot be justified on the theory of error without injury, for each of the counts of the complaint, although defective in its averments of the breaches assigned, stated a cause of action, and, even though it was substantially defective, the proper method by which to reach the defect was to test the sufficiency of the different breaches set up by demurrers aimed in each separate instance at the specific assignment that was defective. — Brooks v. Cont. Ins. Co., 125 Ala. 615, 29 South. 13; Troy Fer. Co. v. State, 134 Ala. 333, 32 South. 618; Ala. Gt. So. Ry. Co. v. Clark, 136 Ala. 450, 34 South. 917; Troy Grocery Co. v. Potter & Wrightington, 139 Ala. 359, 36 South. 12 If the demurrers are sustained, the plaintiff may cure the defect thus pointed out and amend his complaint by setting up, if he can, a good assignment of breach, which he is denied the opportunity of doing by the action of the court in striking the whole complaint on defendant’s motion

We cannot assume that the plaintiff could not, if given the opportunity, have cured the defect by amendment and assigned a good breach; and the action of the court in striking the complaint cannot be said, under the conditions shown by the record, to be error without injury.

It appears that the plaintiff was subsequently permitted to amend count No. 1 of the complaint by adding a claim of attorney’s • fees for defending the garnishment suit, and to refile this count as thus amended. While the record shows both motions to strike and demurrers filed to this amended count, it appears from the judgment entry' that this amended count met the same shorthand disposition at the hands of the court as the original three counts, inasmuch as the special breach assigned Avas stricken on the motion of the defendants. “In this case this shorthand disposition of pleadings was used, contrary to the spirit of our practice and the decisions of this court.” — Wefel v. Stillman, 151 Ala. 219, 11 South. 203.

Unversed and remanded.