Opinion
7 Div. 506.
October 23, 1924.
Appeal from Circuit Court, Cleburne County; A. P. Agee, Judge.
Merrill Jones, of Heflin, for appellant.
It is reversible error to render final judgment against a part of the defendants without disposing of the case as to the others. 23 Cyc. 803; Palk v. Edge, 42 Ala. 631. An action cannot be maintained on the bond, unless the attachment was wrongfully sued out. Calhoun v. Hannan Michael, 87 Ala. 277, 6 So. 291; City Nat. Bank v. Jeflries, 73 Ala. 183; Jackson v. Smith, 75 Ala. 97; 6 Mayfield's Dig. 54. The existence of any statutory ground for attachment is a good defense to an action on the bond. Baxley v. Segrest, 85 Ala. 183, 4 So. 865; Painter v. Munn, 117 Ala. 322, 23 So. 83, 67 Am. St. Rep. 170; Lockhart v. Woods, 38 Ala. 631.
Hugh Walker, of Anniston, for appellee.
Judgment might he had against one or more of the defendants. Code 1907, §§ 2503, 2504.
The suit was upon an attachment bond signed by several obligors.
The judgment entry recites that there was a jury duly sworn and impaneled, and that —
"Upon their oaths do say, after hearing the evidence in the case, we, the jury, find the issue in favor of the plaintiff, J. C. White, and assess his damage at $75.00. C. T. Kitchens, Foreman."
The complaint was against W. S. Harris, E. N. McGriff, and A. O. Harris, each of whom, by attorney, for plea, and answer said: "They deny the allegations of plaintiff's complaint." Under such pleadings and issues, and the verdict of the jury thereon, the following judgment was entered:
"And that the issue is in favor of the plaintiff, J. C. White, on the verdict of the jury, the court considered, ordered, and adjudged that the plaintiff have and recover of the defendant, W. S. Harris, judgment for $75, and against which judgment no exemption is allowed as to personal property."
The defendant W. S. Harris took an appeal, and one of his assignments of error is that —
"The court erred in rendering judgment against defendant, W. S. Harris, only when suit was against W. S. Harris, E. N. McGriff, and A. O. Harris."
It is error, under a verdict against all of the defendants, to render judgment against only one of them, and as to one who can assign the same is reversible error. There should be judgment disposing of the case as to the other defendants under their respective pleadings and issues presented and verdict rendered, unless it be set aside. Tennessee Valley Bank v. Valley View Farm, 210 Ala. 123, 97 So. 62. That is to say, a judgment must be declared and determined by the formal entry of record. Lewis v. Martin, 210 Ala. 401, 98 So. 635. The instant judgment was contrary to the verdict rendered by the jury. The plaintiff in the attachment suit cannot complain of the fact that the judgment was not rendered against his sureties on the attachment bond.
It has been held that, though an attachment may have been sued out maliciously and vexatiously, an action cannot be maintained on the bond unless it is wrongfully sued out — "without the existence of any one of the facts which authorized a resort to the process." Calhoun v. Hannan, 87 Ala. 277, 6 So. 291. Such is the result, since there must be an unlawful act before the good or bad faith with which the act was done becomes material. Jackson v. Smith, 75 Ala. 97. It is further decided that to maintain an action under the statute for maliciously suing out an attachment, ill will, or vindictiveness need not be proved — "only the want of probable cause, coupled with the unlawful act of suing out the writ." Bradford v. Lawrence, 208 Ala. 248, 94 So. 103; Bell v. Seals Piano Organ Co., 201 Ala. 428, 78 So. 806.
Considering the assignments of error as presented, we are of opinion that charge C should have been given.
Though the stated ground of attachment was not that defendant in attachment had removed or consumed a part of the corn grown on the rented premises, yet defendant in the instant suit on the attachment bond was denied the right to testify that he did not defend on such ground. In this state of the evidence charge G should have been given. The same applies to requested charge D As early as Kirksey v. Jones, 7 Ala. 622, and Lockhart v. Woods, 38 Ala. 631, it was held that in an action on an attachment bond, the defense is not limited to proof of the particular facts stated in the affidavit for the attachment, and may be rested on any of the authorized grounds for the issue of an attachment — on absence of probable cause. This rule is followed by this court. Bell v. Seals Piano Organ Co., 201 Ala. 428, 78 So. 806; Baxley v. Segrest, 85 Ala. 183, 4 So. 865; Brown v. Master, 104 Ala. 451, 16 So. 443; Painter v. Munn, 117 Ala. 322, 334, 23 So. 83, 67 Am. St. Rep. 170. The charge should have been given.
Charge Y requested by defendant, was properly refused, since it was not limited, as it should have been, to the recovery of vindictive damages. Bell v. Seals Piano Organ Co., supra.
The objection, after answer, that plaintiff was "put to expense in defending the attachment suit," "paid" his "attorney $25," and that his expenses "all told" were $50, came too late. It was not shown that the objection to the evidence could not have been duly interposed before answer; nor was a motion to exclude overruled, and to which action due exception was reserved. The fact that it was not shown that the sum paid counsel was reasonable for the services rendered (authorities, Code 1923, § 6214) is unavailing to appellant by reason of the foregoing condition of the record.
There was no error in allowing the plaintiff to testify as to the landlord's consent, or implied consent, for the tenants to use the "roasting ears." For this reason defendant should have been permitted to testify that he did not ground his attachment on such fact — made no such defense to the suit on the attachment bond.
The witness Adams, having testified to conversations with defendant Harris and White as to the removal and sale of the bale of cotton and of the disposition of its proceeds, was asked by plaintiff, "Did Mr. Harris tell you anything about the attachment in the justice court?" and answered, in substance, that he said he had the bale of plaintiff's cotton attached, and that White said he took the bale of cotton off. In this there was no error. It tended to show the relation of the parties. So, also, the testimony of L. M. Parker would have shed light upon the state of the account between the parties on September 29, 1922, when the attachment was sued out in the circuit court, or the disposition of the proceeds of the sale of the bale of cotton attached in justice court in reduction of the account for rent or advances — had the same been paid before the issue of process in the circuit court. Such was not the fact. The witness testified that the payment was made about sundown or a little after on the 29th, and defendant informed the court, in his objection to such evidence, that the matter inquired about transpired after the issue of attachment in the circuit court — the suit on which the bond was given and on which this suit is based. In declining to exclude this evidence there was error.
For like reason, there was error in overruling defendant's objection to the introduction in evidence of White's notes to Harris — for, respectively, the amounts of $54, due August 10, 1922, and $13, due May 1, 1922 — marked paid by L. M. Parker.
Plaintiff having introduced evidence tending to show that defendant had consented to the removal of corn from the rented premises, defendant was properly required to answer the question, "You didn't sue out an attachment because he had moved the corn?" Gibson v. Gaines, 198 Ala. 583, 73 So. 929. Defendant had the right to defend on any legal ground authorizing the issue of the attachment, and had the right to waive any ground.
There was no error in allowing plaintiff's counsel to ask the defendant Harris if he "didn't have a difficulty with Jess White on the same day and before" he "sued out this attachment." It tended to shed light on the bona fides or animus of Harris in procuring the issuance of the writ in question on September 29, 1922.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.