Newsom v. Pitman

98 Ala. 526 | Ala. | 1893

HARALSON, J.

The plaintiff, J. Newsom, and the defendant, T. J. Pitman, as is shown in the complaint, were partners doing a mercantile business in Girard, Alabama, under the firm name of J. Newsom & Co.; and on the 31st day of August, 1891, as the complaint avers, the defendant maliciously, wrongfully, and without probable cause, sued out, before a justice of the peace, an attachment in his own favor, returnable to the Circuit Court, against said firm of J. Newsom & Co., of which firm he was a member, and caused the same to be levied by a constable on the entire stock of goods, store furniture, books and accounts of said firm ; that by the direction of the defendant, the constable, on the 31st August, closed up the store house of said firm, andkept it closed, until the 12th of September following, and then, without plaintiff’s consent, and without lawful authority, delivered the keys of the house, and the books and accounts, to one M. T. Lynn, and under the pretense of said legal proceeding utterly ousted plaintiff from his business. It further avers that the matters alleged in the affidavit to procure the issuance of the attachment were maliciously false, and he had no grounds to believe them to be true, and it was made for the purpose of vexing, harrassing, and injuring the plaintiff. It does not set out the grounds on which the attachment was sued out, nor the nature and character of the debt; but this was unnecessary, for no attachment would lie at his suing, against a firm of which he was a member. If the allegations of the complaint are true, the attachment was an illegal and violent procedure by the defendant to accomplish a dissolution of his firm, to oust one of the partners therefrom, and take' possession of the property of the copartnership, without reference to the rights of the plaintiff in it, and to his great damage, as is alleged in the complaint. It ought not to have been done. The law gives a remedy for the wrong, and the plaintiff has not misconceived his action in the complaint he has filed. The demurrer to it should have been overruled.

The judgment of the court below is reversed, and the cause remanded.

Beversed and remanded.