| Ala. | Dec 15, 1876
The ruling of the Circuit Court on the demurrers is nowhere shown in the record in this cause; and if such rulings were had, we can not know what they were. Hence, we can not consider any questions which the demurrers are supposed to raise.—Petty v. Dill, in manuscript.
The present suit is on a bond given to sue out garnishment
The defendant in the suit, however, can be injured. If the garnishee be in fact indebted, the result will be to tie up the claim, and delay its collection, until the garnishment suit is determined. From this necessary result, some damage will be. done the defendant; and it may be that the whole debt is thereby lost to him. Garnishment being a species of attachment, its tendency is to harrass, and, in some degree, to bring odium on the defendant. . On these accounts it is that an action is given to defendant, if the garnishment be Avrongfully or vexatiously sued out. If the garnishment be simply wrongful, the measure of damage and of recovery will be the actual injury sustained, and'nothing will be allowed for injured feelings.—Floyd v. Hamilton, 33 Ala. 235" court="Ala." date_filed="1858-06-15" href="https://app.midpage.ai/document/floyd-v-hamilton-6506348?utm_source=webapp" opinion_id="6506348">33 Ala. 235. If it be also vexatious, then a different rule prevails. Exemplary or vindictive damages may then be recovered — the amount to be determined by the jury in their discretion.
Two essential facts are necessary to justify a garnishment in aid of a pending suit: First, that there is an existing indebtness from the defendant; and, second, that in the belief of the person praying the process, garnishment against •the supposed creditor “is necessary to obtain satisfaction of
Other wrong, injury, or expense, may sometimes be cast on the defendant to the suit, in consequence of the garnishment. Any additional expense incurred by the defendant in the maintenance of his rights, caused by the garnishment, is proper subject of damages in a suit by the defendant. There is nothing in this record showing that such extra expense was caused by the garnishment out of which this suit grew.
There was certainly no error in allowing the records in the original and garnishment suits to be read in evidence. They were the foundation of the present suit — were a necessary part of the very transaction that was being tried — and were not only legal, but the only legal, primary evidence of the facts shown thereby. Judgments are evidence against the whole world, to prove their own existence and contents; but, against strangers, they are not evidence of the rights thereby determined.—1 Brick. Dig. 823, §§ 269, 273.
The Circuit Court, among other matters, charged the jury, that Nobert Hamner, plaintiff below, was entitled “ to recover in this action the actual damages sustained by him in the defense of said garnishment suit, and actual damages include reasonable and necessary counsel fees, and other legal fees and costs necessarily incurred by plaintiff in defending said garnishment suit.” In this, we think the Circuit Court erred. The defendant, Nobert Hamner, was under no legal obligation to defend the garnishees, Simpson & Freeman-It was their duty to see that they were not adjudged to pay, otherwise than according to law; and if they improperly submitted to a judgment which the law did not authorize, a payment of such judgment by them would be no defense to a suit for the same claim by Hamner. To justify such payment, and make it operate a bar to Hamner’s suit, it must be made under a valid judgment of the court condemning.it.
We repeat, Ave knoAV of no duty resting on Hamners to defend the garnishees. It follows that, for such gratuitous defense, no liability can be fastened on the bondsmen. The duty rested on the garnishees to present every material fact, showing that judgment should not be'pronounced against them; and if they, in fact, oAved a debt, liable to condemnation, it Avas their dirty to see that it Avas not rendered for too large a sum.—Thompson v. Gates, 18 Ala. 33; Seay v. Greenwood, 21 Ala. 495.
Of course, if the Hamners defended the main suit successfully, this necessarily defeated the garnishment, which was but a dependent proceeding. We can not perceive that the pendency of this branch suit increased the difficulty or expense of defending the main suit. Defeating the one, the other must necessarily fail. There are contingencies, however, in Avhich garnishment might cast expense on the defendant to the suit, beyond mere delay in collection. None such are shoAvn in this record.
An exception is taken, but not clearly presented, growing out of an alleged fraudulent sale of property by William T. to Robert Hamner. There is not enough shoAvn for us to perceive the bearing or pertinency of it. If, in fact, the debt of Simpson & Freeman Avas the property of Wm. T. Hamner, then the arrest or suspension of its payment did not, and could not, injure Robert Hamner. But, from the
We need not declare the effect of the alleged promise, if believed, made by Robert Hamner to Pounds, that if he, Pounds, would pay the default, he, Robert, would repay, or indemnify him. Whether such promise was made, and, if made, whether Pounds paid the money on the faith of it, are questions of fact, not for our determination. The influence such facts, if established, would exert in the determination of this cause, is not presented by any ruling of the Circuit Court.—See Vogel v. Melnes, 81 Wis. 306, and authorities therein cited; S. C. 11 Amer. Rep. 608; Shook v. Vanmater, 22 Wisc. 532; Holmes v. Knight, 10 N. H. 175.
We find no other errors in the record.
Reversed and remanded.