Turner v. Crane

75 So. 945 | Miss. | 1917

Sykes, J.,

delivered the opinion of the court.

The appellant, "W. A. Turner, instituted an attachment suit against appellee, J. J. Crane, in a justice of the peace court of Scott county. From the judgment in that court.an appeal was prosecuted to the circuit court. In the circuit court a peremptory instruction was given the jury to return a verdict in favor of the defendant on the attachment issue and awarding a writ of inquiry to assess the damages sustained by the defendant because of the wrongful suing out of the attachment. The jury returned a verdict in favor of the defendant for eighty dollars actual damages and thirty-five dollars as a reasonable attorney’s fee incurred by the defendant in defending the suit. Judgment was entered on this verdict in favor of the defendant for this amount, from which judgment this appeal is prosecuted.

The grounds of the attachment were that the defendant was indebted to plaintiff in the sum of one hundred and seven dollars and forty-six cents, and that the said Crane, defendant, “so absconds himself that he cannot be served with a summons,” and that the defendant was a nonresident of the state; that he had assigned or disposed of or was about. to assign or dispose of his property or rights in action wih intent to defraud his creditors. The defendant in the court below, the appellee here, was the only witness who testified as to the grounds of attachment. His testimony showed that he was an old man about seventy-six years old and practically an invalid; that a few years before the attachment suit was brought his home in Forest burned; that that he had not rebuilt the same because he was not financially able; that after his home burned, on the advice of his physician, he went to Louisiana and visited" a son in one place and a daughter in another place, remaining away several weeks of that year; that in the year the attachment was sued out, on the advice of his physician and in search of health, he remained away from Forest about six months visiting these same relatives of his; that he was only away temporarily; that his home was at Forest; that he was a resident and citizen and a voter of that town and county; that he was a Confederate soldier, and was drawing a pension in Scott county; that he was not away from home for the purpose of absconding or absenting himself or to put himself where he could not be served with the process of the courts of that county; that the only property owned by him was the lot upon which his residence had stood.

He further testified that he had had one or two inquiries with reference to selling the lot, and also some talk with a gentleman about building a house on the lot for him, thereby providing a home for himself and his wife. During the time that the appellee was absent from Forest, his wife, who was an invalid suffering with paralysis, remained in Forest all the time.

Upon this testimony the court correctly sustained the' peremptory instruction asked by the appellee that the attachment was wrongfully sued out. The testimony beyond dispute shows that appellee was only away from home temporarily in search of health.

There was no testimony to sustain the verdict, however, for eighty dollars as actual damages in addition to the attorney’s fee of thirty-five dollars. The only testimony relating to any actual damages was that of the appellee himself that he had hád some inquiries to sell the lot, and also some conversation with a gentleman about building a house thereon, but that he was unable to do either, because of the suing out of the at-' taehment and the levy on this lot. These damages were too remote and speculative upon which to base a recovery. The recovery of the attorney’s fee, however, was correct.

The judgment of the lower court will he affirmed, provided the appellee will remit eighty dollars of the amount of the recovery; otherwise it will he reversed, and the cause remanded.

Affirmed conditionally.