Sacket v. McCord

23 Ala. 851 | Ala. | 1853

GOLDTH WAITE, J.

The condition of the attachment bond was, in accordance with the statute, (Clay’s Digest 54 § 8,) to prosecute the attachment with effect, and pay the plaintiff all such damages as he might sustain by the wrongful suing out of the same ; and although a record of a judgment or verdict, in favor of the defendant in attachment, would be conclusive to show that the plaintiff had failed to prosecute his suit to effect, by itself it was not conclusive, as to the wrongful suing out of the attachment; for it may have been rendered upon an issue not affecting the merits of the case. We do not say that it would have been conclusive had it been rendered upon the merits, (Lucas v. The Governor, 6 Ala. 826,) but it certainly was not when introduced by itself.—Marshall v. Betner, 17 Ala.

As to the argument for the defendant in error, that as the bill of exceptions does not show that any other evidence was offered than the judgment referred to, that the charge of the court must be taken with reference to that evidence only, and in that respect was correct: The fact that no other evidence was offered than the judgment, might render it more effective as evidence before the jury, but would not change its character, so as to authorize the court to say that it was conclusive. We cannot, however, say from the record that there was no other evidence, as the party excepting is only required to set out so much of the testimony as may be necesssary to show that the court erred in its ruling, and when this is done a reversal necessarily follows, unless the record also shows that no injury resulted from the error.

It is also urged, on the part of the appellee, that the assignment of errors cannot be considered, for the reason that it does not appear that the ruling of the court below was excepted to. We think that when the bill of exceptions shows that the ruling of the court was objected to at the time it was made on the trial, it is sufficient. A bill of exception is defined to be “ a statement of the objections made by the parties to the ruling of the court,” (Bouv. Law Die. 200,) and tbe bill in tbe present case comes fully up to the definition. We are unable to see any sound reason why it should be necessary to state specially that the ruling of the court was excepted to. Such must necessarily be the purpose and intent of every objection which is made to the decision of the court, and the objection becomes senseless and absurd on any other supposition.

. The judgment must be reversed, and the cause remanded.