98 So. 203 | Ala. | 1923
The action was brought to recover damages sustained by the wrongful and malicious suing out of an attachment. Reference is made to the report of the case on former appeal.
Defendants objected to some parts of the opening statement made to the jury by counsel for plaintiff. The statements reproduced in the bill of exceptions are so fragmentary and meaningless withal that we are clear to the conclusion that they afford no substantial reason for reversal. Judgments that may have been affected by improper appeals to the jury will be reversed, but that result cannot be made to follow upon every loose remark made by counsel in the heat of argument or advocacy. Probable injury must be made to appear, and that is not the case here.
Plaintiff sought to recover the amount of a fee he had paid his attorney for services rendered in defending the attachment suit, and was allowed to prove the payment of a certain sum to his attorney on that account. In this there was no error, for the evidence went a part of the way at least to proving plaintiff's right to such damages. Higgins v. Mansfield,
The attachment had been levied on plaintiff's crop in the field, among other things, to quote the sheriff's return, on "about four bales of cotton in field," and plaintiff contended and adduced evidence tending to show that the cotton had been left in the field and exposed to the weather so long and had been so negligently harvested as to materially affect its value, thereby augmenting plaintiff's recoverable damages. Vandiver v. Waller,
Plaintiff, undertaking to show that the issue of the attachment had injured his credit, testified to one instance in particular among others, viz. that he had tried to buy *334 some stuff from D. M. White at Goodwater, but could not get it on credit. Defendants should have been allowed to ask the witness, plaintiff, the question shown in the twelfth assignment of error, as going to show in rebuttal that plaintiff had never had any personal credit with White. There is some doubt as to the proper construction of the question, appellee's contention being that it called for White's custom in general; but we construe the question as designed to elicit the facts as to plaintiff's personal credit with White. If this line of inquiry is followed on another trial, this obscurity will no doubt be cleared up.
We think the questions shown in assignments of error 13 and 14 had some, though slight, bearing on the issue whether the contract between the parties, out of which arose the attachment suit, was void because executed on Sunday. Code, § 3346. We see no reason why they should have been disallowed.
Charge R, given at the request of plaintiff, should have been refused as being of obscure meaning and misleading tendency.
Plaintiff's contention was that the contract between himself and defendant Street, on which the attachment suit had been brought, was void because made on Sunday; but the evidence on this issue was in conflict, and the general affirmative charge as to each count of the complaint was properly refused to defendants.
Charges 11 and 12 were refused to defendants for the reason that there was evidence tending to show that plaintiff's cotton and corn were damaged by reason of the levy of defendant Street's attachment and their consequent exposure to weather, and, while the jury should have been afforded more exact data for the assessment of such damages, if any, the evidence authorized the assessment on that account of nominal damages at least.
Charge 14 was properly refused. The question as to plaintiff's liability to defendant Street — the other defendants being his sureties in the attachment bond — appears to have been adjudicated in plaintiff's favor in the attachment suit, and for this reason also charges 15 and 17.
Charge 16 was well refused. Actual, substantial damages, in that plaintiff's cotton was levied upon and sold, were shown.
It is not deemed necessary to consider in detail some other questions argued in the briefs. For the error shown the judgment must be reversed and the cause remanded. On another trial the pleadings should be reformed.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.