27 Ala. 678 | Ala. | 1855
The action was for causing an attachment against Frederic Heim to bo levied on the goqds of the appellee. The appellant, who was the defendant below, pleaded in abatement the non-joinder of Frederic Heim ; alleging, that he and the plaintiff were partners, and as such joint owners of the property levied on. Pleas of this character are not viewed with favor, and the rule requires that every inference, however slight, should be repelled. Construing it most strongly against the pleader, and in the absence of any averment to that effect, we cannot say, with certainty, that the person whose non-joinder is pleaded is not the same with the defendant in attachment; and if so, as he could not maintain this suit (Winston v. Ewing, 1 Ala. 129), his non-joinder could not be pleaded. It is true, if the defendant in attachment was interested as a partner with the plaintiff in the goods, that would be a bar to the action (Winston v. Ewirig, supra), and could have been so pleaded; but, as it would have put an end to any action for this cause, it could not bo pleaded in abatement. The demurrer, therefore, was properly sustained.
The judgment on the trial of the right of property being between the same parties, wás conclusivo upon every matter which must have been litigated in that action. — Chamberlain v. Gaillard, 26 Ala. 504. The question on such trial was, whether the goods levied on were subject to the attachment; and this necessarily involved the determination of the fact, whether the defendant in attachment had any interest in them, and was conclusive upon that point. The case of Sackett & Shelton v. McCord, 23 Ala. 851, is unlike this case ; for there it was simply a judgment for the defendant upon verdict, and there was nothing to show that it was rendered on an issue which went to the indebtedness of the defendant at the time the attachment was sued out. Marshall v. Betner, 17 Ala. 832, merely decided, that a judgment in favor of the defendant in the attachment suit would not prevent the plaintiff in that action, when sued for wrongfully and voxaliously suing out the attachment, from showing the real facts, although in issue in the former suit, -in order to rebut the presumption of malice, which was an issue not presented in the other action..
In relation to the counsel fees paid in the claim suit, we are of opinion, that they formed a legitimate subject for the jury to take into consideration in the assessment of damages. Whenever a party is compelled, by the wrongful act of another, to have recourse to professional assistance, it is justly regarded as part of the damage occasioned by such act, and may properly be taken into consideration by the jury, in all compensatory actions. — Seay v. Greenwood, 21 Ala. 492; Ferguson & Scott v. Baber’s Adm’rs, 24 Ala. 402.
Judgment affirmed.
