38 C.J.S. Garnishment § 313 c. (1943). We pointed out in Davis v. Shemper, 210 Miss. 201, 49 So.2d 253 (1950), suggestion of error 210 Miss. 201, 50 So.2d 143 (1951), that one who causes a wrongful attachment by garnishment of the bank account of another is liable at least for nominal damages, although no proof of actual damage was shown. The Court of Appeals of Alabama in a suit for the issuance of a wrongful garnishment, after pointing out the proof necessary to show the elements of a wrongful garnishment quoted from Pounds v. Hamner, 57 Ala. 342, 346, (1876) as follows: "If either of those essential facts be wanting, the garnishment is wrongful, and the defendant is entitled to his action, and to a recovery commensurate with the injury he has actually sustained."
His $500 appeal bond named as its obligee only Allis-Chalmers, the appellee, and made as its condition that the bond would pay all costs, if the decree were affirmed. Since the decree was in favor of D.W. and B.T. Duckworth and Mrs. Gardner, the suit having been dismissed as to them, they of course did not appeal. Moreover, they had no right to appeal, since they were not opposite parties to R.L. Duckworth, were not aggrieved by the decree, and had been dismissed from the suit. Miss. Code 1942, Rec., sec. 1147, 1162; Barrett v. Carter, 69 Miss. 593, 13 So. 625 (1891); Davis v. Shemper, 210 Miss. 201, 49 So.2d 253, 255, 50 So.2d 143 (1951); 4 C.J.S., Appeal and Error, sec. 183. (Hn 5) This case was originally set for hearing on November 5, 1962.
"Although no actual loss is shown, if there has been a technical conversion the defendant is liable for at least nominal damages." 89 CJS 642, Trover Conversion, § 161; Davis v. Shemper, 210 Miss. 201, 49 So.2d 253. Defendant did not file a motion to strike the allegations claiming damages for nervous mental shock.
II. Even if a right of appeal exists, the judgments of the Justice Court, County Court, and Circuit Court are correct and this cause shall be affirmed. Bowles v. Dean, 84 Miss. 376, 36 So. 391; Clark v. Service Auto Co., 143 Miss. 602, 108 So. 704, 49 A.L.R. 511; Conn. v. Brashears (Miss.), 38 So.2d 907; Davis v. Shemper, 210 Miss. 201, 49 So.2d 253; Downing v. Campbell, 131 Miss. 137, 95 So. 312; Patterson v. Gathings, 48 Miss. 639; Paxton v. Oliver, 70 Miss. 570, 12 So. 799; Simpson v. Boykin, 118 Miss. 701, 79 So. 852; Stovall v. Gardner, 203 Miss. 527, 36 So.2d 163; Wilson v. Wood, 84 Miss. 728, 36 So. 609; 2 Am. Jur., Sec. 148 p. 941; 3 Am. Jur., Sec. 826 pp. 770-71. KYLE, J.
Appellants did not request any further action by the Court, and did not ask for a mistrial. Alabama V. Ry. Co. v. Lowe, 73 Miss. 203, 19 So. 96; Carlisle v. City of Laurel, 56 Miss. 410, 124 So. 786; Davis v. Shemper, 210 Miss. 201, 50 So.2d 143. XI. Appellee was permitted to amend his declaration to eliminate therefrom any demand for damages for loss of society and companionship, and to insert a demand for damages for the pecuniary value of the life of the decedent.
III. The appellant herein was a successful party below and, therefore, had no appealable interest on which to base any appeal against his codefendant below and appellee herein. Barrett v. Carter, 69 Miss. 593, 85 Miss. 691, 38 So. 75; Calcote v. Wise, 219 Miss. 270, 68 So.2d 477; Davis v. Shemper, 210 Miss. 201, 49 So.2d 253, 50 So.2d 143; Illinois Cent. R.R. Co. v. Clark, 85 Miss. 691, 38 So. 75; Nelson v. Illinois Cent. R.R. Co., 98 Miss. 295, 53 So. 619; Shuptrine v. Natalbany Lumber Co., 189 Miss. 409, 198 So. 25; Southern Pine Co. v. Mitchell (Miss.), 19 So. 583; Spanja v. Thibodaux Boiler Works (La.), 33 So.2d 146; Yazoo M.V.R.R. Co. v. Hardie, 100 Miss. 132, 55 So. 967; Secs. 1147, 1149, 1156, 6998-22, 6998-26, Code 1942; 2 Am. Jur., Secs. 152-3 p. 943; 4 C.J.S., Sec. 183(3) p. 359; 71 C.J.S. 1229, Note 56. KYLE, J.
I. Refusal of court to grant the peremptory instruction requested by appellees. Austin v. Patrick, 179 Miss. 718, 176 So. 714; Board of Miss. Levee Comm'rs v. Kellner, 189 Miss. 232, 196 So. 779; Buckley v. United Gas Public Service Co., 176 Miss. 482, 168 So. 462; Crawley v. Ivy, 149 Miss. 764, 116 So. 90; Davis v. Shemper, 210 Miss. 201, 49 So.2d 253, 50 So.2d 143; Forrest County v. Thompson, 204 Miss. 628, 37 So.2d 787, 793; Fotheree, et ux. v. Lawrence, 30 Miss. 46; Hilton v. Johnson, 194 Miss. 671, 12 So.2d 524; Merchants Fertilizer Phosphate Co. v. Standard Cotton Gin, 199 Miss. 201, 23 So.2d 906; Minor v. Russell, et al., 126 Miss. 228, 88 So. 633; Newboles v. Newboles, 169 Ark. 282, 273 S.W. 1026; Planters Lbr. Co. v. Plumbing Wholesale Co., 181 Miss. 782, 180 So. 793; Pratt, et al. v. Hargreaves, et al., 76 Miss. 955, 25 So. 688; Southern Pine Co. v. Mitchell, 19 So. 583; Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 63 A.L.R. 1188. II. The overwhelming evidence did not justify a peremptory instruction of insanity.
The court was correct in allowing the amendment. Sec. 1511 Code 1942; 41 Am. Jur. 488, Sec. 288; May v. Williams, 61 Miss. 125; Bloom v. McGrath, 53 Miss. 256; Parker v. McCaskey, 177 Miss. 357, 171 So. 337; Oliver v. Miles, 144 Miss. 852, 110 So. 666; Montgomery Ward v. Nickens, 203 Miss. 195, 33 So.2d 815; Gill v. Dantzler Lumber Co., 153 Miss. 559, 121 So. 153; Davis, et al. v. Shemper, 50 So.2d 143. III. Appellant's itemized account was good.