43 Ind. 486 | Ind. | 1873
Wilson and Lowry sued the appellees in the Wayne Common Pleas, and in connection with their action, and as authorized by the code, they took out an attachment against the property of the appellees, and for that purpose executed an undertaking with security, in which they undertook that they would duly prosecute their proceeding in attachment in the action, and pay to the defendants all damages which they might sustain if their proceedings should be wrongful and oppressive. The attachment went into the hands of the sheriff, and by virtue of it he seized six thousand dollars of bank stock owned by the attachment defendants. A change of venue was granted in the action from the Wayne to the Union Common Pleas, at the instance of the appellees, where, after issues were found, there was a trial and final judgment for the appellees, not only as to the attachment, but also as to the existence of any cause of action against them.
This was an action by the appellees against the appellants on the undertaking which was executed and filed in that case by the appellants. In the complaint the plaintiffs allege the commencement of the action by the appellants, Wilson and Lowry, against them, on the 16th day of July, 1866, to
The defendants then answered in five paragraphs: 1st. A general denial. 2d. That all the damages sustained by the plaintiffs grew out of the action brought by Wilson and Lowry against them and their defence of the same, and not out of the attachment or the defence of the same. 3d. That the plaintiffs did not pay out any money whatever or incur any loss by reason of the issuing of said attachment. 4th. That the attachment was properly and legally issued against the property of the defendants, they being at the time and still being residents of the State of Ohio. 5th. This paragraph was by Wilson only, alleging his discharge in bankruptcy.
The plaintiffs demurred separately to the second, third, fourth, and fifth paragraphs of the answer, on the ground that neither of them stated facts sufficient to constitute a defence to the action. The court sustained the demurrer to the second, third, and fourth paragraphs, and the defendants excepted. The plaintiffs filed a reply by general denial to the fifth paragraph. Sylvester Johnson, one of the defendants, filed a pleading alleging that he was surety in the undertaking for the other defendants.
The cause was, by agreement of the parties, tried by the court, and there was a finding by the court, which is spo
The defendants moved the court for judgment on the special finding of the court, and, in the same motion, for judgment in their favor notwithstanding the finding of the court. The court overruled this motion, and the defendants excepted.
The defendants then moved the court for a new trial, for the reasons following: ist. Because the damages were excessive. 2d. Error of the court in the assessment of the amount of the damages, the same being too large. 3d. The finding and judgment of the court are not sustained by sufficient evidence. 4th. The finding and judgment are contrary to law. 5th. Error of law by the court in the trial and proceedings of said cause, in this, to wit: xst. The court improperly overruled a demurrer to the complaint. 2d. The court improperly sustained demurrers to the second, third, fourth, and fifth paragraphs of the answer. 3d. The court improperly permitted the plaintiff to read in evidence the undertaking sued on, and the attachment, and the record certified by the clerk of Union county. 4th. The court improperly refused to allow the defendant to ask the questions in writing numbered one, two, three, four, five, six, seven, eight, nine, and ten, respectively, to which the defendants at the time excepted. 5th. That the court improperly overruled defendants’ motion in wilting to suppress the depositions of G. G. Root and A. E. Smith, as to the defendants John W. Wilson and James Lowry. 6th. The court permit-' ted the plaintiff to give in evidence the testimony marked objected to by the judge in the minutes taken by him. 7th. Error of the court in overruling the motion of the defendants for judgment in their favor on the findings of the court.
This motion was overruled by the court, and the defend
The errors assigned are as follows: 1st. The damages are excessive. 2d. The finding and judgment of the court are contrary to law. 3d. The finding and judgment of the court are not sustained by the evidence. 4th. Error of the court in overruling the appellants’ demurrer to the complaint. 5th. Error of the court in sustaining the demurrers to the second, third, fourth, and fifth paragraphs of the answer. 6th. Error of the court in refusing to allow answers to questions one, two, three, four, five, six, seven, eight, nine, and ten, as set forth in record, page 16, line 10, et sequitur. 7th. Error of the court in overruling the motion of the defendants for judgment on the special finding. 8th. Error of the court in overruling appellants’ motion for a new trial.
We may as well, in the-first place, eliminate some superfluous matters which are in the record, and then we shall see what remains for our consideration. In the motion for a new trial, under the fifth general reason for a new trial, the subdivision number one, relating to the overruling of the demurrer to the complaint, and that numbered two, having reference to sustaining the demurrers to the paragraphs of the answer, neither of which is a reason for a new trial in any case; the fifth, relating to refusing to suppress depositions, the ground of which is nowhere shown in the record; the sixth, with regard to “admitting in evidence the testimony marked objected to by the judge,” which is not presented by the record; and the seventh, which is overruling the defendants’ motion for judgment on the special finding, which is not a cause for a new trial, even when there is a proper special finding in the record, must all be disregarded by us for the reasons stated.
In the assignment of errors, the first, second, third, and sixth, which are simply the repetition of some of the reasons for a new trial and are all embraced in the eighth error assigned, and the seventh, which has no valid special finding upon which to rest, must also, all of them, be laid out of the case,
Having pruned the record of those parts which can not aid in the proper determination of the case, let us ascertain what questions are rightly presented for our decision, and what the law is arising upon them. The first question relates to the sufficiency of the complaint. The second concerns the sufficiency of the second, third, and fourth paragraphs of the answer. The third is as to the correctness of the ruling in refusing to grant a new trial. We shall dispose of these questions as here numbered.
The complaint we regard as clearly sufficient. Indeed,
The second, third, and fourth paragraphs of the answer seem to us to add nothing material to the issue as formed by the general denial. Proof of any items of damages properly allowed should have been admitted by the court under that issue, and proof of those which were not proper should have been excluded by the court. Nothing more could have been done if the special paragraphs had been in.
While the question is not very well presented, we think under this division we may properly consider and decide the question which seems mainly to constitute the matter of difference between the parties, and that is as to the allowance of attorney’s fees paid or to be paid by the plaintiffs for defending the former action.
There may be different results in an action in connection with which an attachment has been sued out: 1st. The action and the attachment may both be sustained; in which case there can be no suit upon the undertaking. 2d. The action may be sustained, and the attachment may not be sustained, but may have been, wrongful and oppressive; in which case it would seem that the attorney’s fees for defending against the attachment should be allowed in an action on the undertaking, but not those for defending the action. 3d. When the action and the attachment have both been defeated, there having been no foundation for the action, and consequently no right to sue out the attachment; in which case it seems to us that' there can be no distinction made between services rendered in the defence of the action and those rendered in defence of the attachment. In such a case we think the reasonable attorney’s fees of the defendant in the action in which the attachment was sued out, for defending both the action and attachment, may be included in the damages allowed in a suit on the. undertaking. Sedgwick Measure of Damages, 453; Drake Attachment sec. 175, et seq.; Morris v. Price, 2 Blackf. 457;
The evidence is not all in the bill of exceptions. We can not therefore say that the damages were excessive, or that the finding of the court was not sustained by sufficient evidence. ■*
The judgment is affirmed, with costs.