Opinion
8 Div. 487.
October 26, 1922.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
Street Bradford, of Guntersville, for appellant.
Evidence of expenses incurred by plaintiff in attending trial of the claim suit was inadmissible. 74 Ala. 393; 18 C. J. 1028; 65 Ala. 417, 39 Am. Rep. 5; 69 Ala. 581; 143 Ala. 315, 39 So. 262, 111 Am. St. Rep. 45, 5 Ann. Cas. 97; 155 Ala. 399, 46 So. 645; 194 Ala. 260, 69 So. 634. Plaintiff was not entitled to recover for the services of her son in going after the cotton. 109 Ala. 373, 19 So. 427.
John A. Lusk Son, of Guntersville, for appellee.
The authorities cited by appellant under his first proposition are not applicable to the case at bar. Plaintiff was entitled to recover all expenses to which she was reasonably put in regaining the possession of the property wrongfully taken, except attorney's fee. 20 Ala. 694; 69 Ala. 581.
Action by appellee against appellant de bonis asportatis. The sheriff of Marshall county levied an execution in favor of defendant on two mules, one mare, and three bales of cotton as the property of Cliff Weaver, defendant in execution. In a trial of the right of property, plaintiff established her right, and thereafter brought this action against appellant and the sureties on the indemnifying bond, which the sheriff had required before making the levy. Errors assigned relate only to the measure of damages.
Plaintiff recovered her property after two or three days. The owner may reasonably exert himself to secure the return or recapture of his property, and he is entitled to compensation for such exertions, and also for moneys expended for the same purpose, in a judicious and reasonable manner. 4 Suth. Dam. (4th Ed.) § 1103. Thus, in a case like this, the owner is entitled to recover in addition to compensation for the use or service of the property during the time he has been deprived of it and any damage done to it. Under this head we think plaintiff — as for any objection, at least — was properly allowed to show "the value of the hire of a horse and buggy to come to Guntersville to attend the trial of the right of property."
But evidence that the mules had distemper — meaning a cold — when they came back into the possession of plaintiff, and that this ailment injuriously affected the value of their use for a time, should have been excluded. There was no evidence going to show that the animals had been improperly cared for or that their taking by the sheriff (as defendant's agent) had caused the trouble, directly or indirectly. As the case stands on the record, the finding against defendant on this item was a mere speculation.
So the alleged damage to the colt, left behind when the mare was taken, was indirect, remote, and not within the limit of reasonable compensatory damages set by the rule in cases of this character.
It did not appear that plaintiff had expended anything or had become liable to any extent on account of her son's trip to get the cotton. Defendant was therefore not liable on that account. Schaefer v. Austin, 109 Ala. 373, 19 So. 427.
Section 6049 of the Code had nothing to do with the case — the sheriff was not sued.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.