Ritter v. Hoy, 56 So. 814

Ritter v. Hoy

56 So. 814 | Ala. Ct. App. | 1911

WALKER, P. J.

The plaintiffs (appellants here) could not have been prejudiced by the action of the court in sustaining objections to questions propounded to the plaintiff Ritter as to whether or not at the time of the. suing out of the garnishment he was a practicing attorney in Birmingham, and as to what banks he had done business with up to that time, as the evidence sought to be elicited by each of those questions was subsequently admitted by the court. .

There was no error in sustaining the objection of the defendant to the question to the plaintiff Ritter as to whether or not his coplaintiff, Tribble, had been sued for debt prior to this action. The matter called for could have had no bearing on any issue in this case. It is suggested in argument that the inquiry was pertinent on the question of credit. We do not think so. The mere fact of one’s being sued on an alleged debt would have no legitimate tendency to prove that he owed such debt and was in default in its payment, and could not be regarded as a circumstance unfavorably affecting his credit. On the other hand, the fact that he had never *363been sued for a debt would have no tendency to prove that he had been indebted or that he enjoyed or was entitled to credit.

The bill of exceptions does not show that the plaintiffs interposed any objection to the question asked the plaintiff Ritter as to Mr. Hoy’s trying to collect the note. The statement is that the defendants objected to that question. The plaintiffs cannot complain of the overruling of an objection made by the defendants.

The ruling of the court on the motion of the defendants to exclude the answer of the witness Jaffe to the question in regard to the general credit of the plaintiff Ritter is not presented for review, as no exception was reserved to that ruling.

The expressed purpose of the questions asked the defendant Hoy on his cross-examination in reference to the consideration of the note sued on in the garnishment case was “to show that the amount for which the gar nishment was run was greater than the sum actually due at that time.” Instead of undertaking to show this by bringing out the facts, the questions asked in that connection were calculated to elicit the mere opinions or conclusions of the witness as to the amount then due. There was no error in sustaining the objections to those questions.

The bond sued on was given to secure the issuance of process of garnishment in a pending suit against the plaintiffs in this action, counting on a promissory note alleged to have been executed by them. Two banks in Birmingham' were named as the garnishees. The defendants in the suit gave bond, as authorized by the statute, and thereby effected the dissolution of the garnishments on the day of the issuance and service of the writs. Under the evidence it was a question for the jury whether or not the issuance and service of the writs *364entailed upon the plaintiffs any actual damage which was appreciable and susceptible of ascertainment and assessment. In the circumstances developed by the evidence it was not for the court to say that such was the fact. This being true, it was justified in refusing to give written charges 1, 2, and 3, requested by the plaintiffs, as each of those charges involved the assumption that the plaintiffs sustained actual damages.

Where an action is for actual damages which are uncertain or have not been admitted, the burden of establishing the amount thereof by evidence is upon the plaintiff.— Buist v. Guice, 96 Ala. 255, 11 South. 280; Hood v. Disston & Sons, 90 Ala. 377, 7 South. 732; 13 Cyc. 192. The statement of this proposition discloses a fault in each of the plaintiffs’ written charges numbered 4, 5, and 6, justifying the refusal of the court to give them.

It is suggested in argument that the court erred in giving written charges numbered 2, 5, and 6 requested by the defendants. Under the pleadings and evidence in the case, if it was found that the garnishment was not sued out maliciously or vexatiously, no basis was left for the assessment of punitive or exemplary damages. It follows that the plaintiffs could not have been prejudiced by the giving of charges 2 and 3 requested by the defendants. There was no evidence upon which to base an assessment of actual damages except that in reference to the tying up of money of the plaintiffs by the service of the writs and that bearing upon the effect upon the credit of the plaintiffs of the issuance and service of the writs. Such being the case, the giving of charge 6 did not constitute error prejudicial to the appellants.

What has been said disposes of all the assignments of error which are insisted on in argument.

Affirmed.