106 Ala. 336 | Ala. | 1894
— This cause was tried by the court without the intervention of a jury.
IT. M. Weedon and G. IT. Dent, doing business as a partnership in the name of Weedon & Dent, gave bond and sued out an attachment against J. T. Jones and Lizzie Horton. The bond was made payable to the defendants in the attachment suit. The attachment suit resulted in a verdict for the defendants. J. T. Jones commenced the present action in his individual name upon the attachment bond to recover damages sustained by him. -By leave of the court he amended the complaint by adding Lizzie Horton as a co-plaintiff, and sued for the damages sustained by both, in consequence ■of the wrongful suing out of the attachment. The ■court did not err in allowing the amendment, nor was there a fatal variance in the suit as originally brought and that made by the amendment. The attachment bond was the foundation of'the suit, and its breach, the -cause of action. Conditioned as it was .the suit could not be maintained except in the name of the payees. When only one of the obligees in an attachment bond is damaged, the -suit can be maintained in the name of the
The evidence showed that the attachment was levied upon the separate property of each of the defendants in attachment, and that each employed different counsel to represent their respective interest and incurred separate counsel fees. These facts present no bar to a joint recovery upon the bond. The question has been so often a matter of judicial determination in this State, and the reasons stated, we deem it unnecessary to do more than to cite a few of the earlier and more recent decisions — Gayle v. Martin, 3 Ala. 593 ; Martin v. Boyd, 10 Ala. 700, supra; Miller v. Garrett, 35 Ala. 100; Watts v. Wilson, 75 Ala. 289, 292; Masterson v. Phinizy. 56 Ala. 336, supra; Smith v. Loan Trust Co., 102 Ala. 282, supra.
There is no error in the record,
Affirmed,