Birmingham Dry Goods Co. v. Finley , 122 Ala. 534 ( 1898 )

HARALSON, J.

— Action on an attachment bond, for the wrongful suing out of the attachment.

To justify an attachment, there must be a debt, due or to become due, and one of the enumerated statutory grounds therefor must exist; and if either of these he Avanting in fact, no matter Iioav sincerely the attaching creditor may believe it to exist, the attachment is Avrongful, and in such case, without more, the measure of recovery in a suit on the attachment bond is the actual injury sustained. — City National Bank v. Jeffries, 73 Ala. 183; Hundley v. Chadick, 109 Ala. 575.

The ground on which the attachment was sued out in this case, was that the plaintiff here, the defendant in attachment, had “money, property and effects liable to satisfy said debt [the one named in the affidavit for attachment as due the plaintiff therein] which she fraudulently withholds,” etc. The plaintiff, her clerk, McMillion, and the manager of her business, Lodge, each testified denying the ground of attachment set forth in the affidavit, and denying the existence of each of the statutory grounds for suing out an attachment. The other evidence on the part of the plaintiff tended, also, to show the non-existence of any of these grounds. The witness, Lodge,testifiedliehad been for three years in the employment of plaintiff as manager of her business and salesman, that her business had been about $10,000 a year in sales up to the suing out of the attachment, from which she realized a net profit of 20 per cent, and her credit was good; that prior to the attachment plaintiff had proceeded diligently to apply proceeds from her sales and collections to the extinguishment of bills owing by her for goods purchased for the business. Her counsel asked the witness Avlmt plaintiff had so paid on her debts during the year 1897 — the attachment having been sued out on the 21th December of that year — and, if after the attachment, some of plaintiff’s customers had not gone elsewhere to trade. To each of these questions as propounded, the defendant objected on the grounds that they called for irrekwant and immaterial evidence, Avhich objections Avere separately overruled.

The first of these questions called for evidence tending to sIioav that the ground for suing out the attachment was untrue. The ansAver to it was that she had paid out during the year from $7,000 to $10,000 on her debts for goods for the business in 1897. This Avas certainly very pertinent to sIioav, that she Avas not fraudulently withholding her means from her creditors. The other question called for evidence that was not impertinent, but relevant to the issues. One of the special grounds for damage laid in the complaint, and which Avas unchallenged as an element of damage, being, that in consequence of the suing out of the attachment the plaintiff’s business reputation and credit had been destroyed and her customers had withdrawn from trading with her.

At the request of the plaintiff, the court gave the general charge in her favor, having first charged the jury, that there was no evidence that the attachment was vexatiously sued out. In this, it has not been shown that there was error. Without reviewing the evidence, it may he said, that it shows without conflict, that the attachment was wrongfully sued out. The evidence on the part of the defendants does not tend to show to the contrary, but was admissible in its tendencies simply in mitigation of damages. The judgment must be affirmed.

Affirmed.