Schloss v. Rovelsky , 107 Ala. 596 ( 1894 )

COLEMAN, J.

This was an action by appellee upon an attachment bond. We have held that to authorize á recovery for exemplary damages, in a suit upon an attachment bond, the complaint must show not only that the attachment was sued out without the existence of the statutory grounds for the issuance of the attachment, but must further aver that the attachment was sued out without probable cause for believing the alleged ground to be true. — Crofford v. Vassar, 95 Ala. 548 ; McLane v. McTighe, 89 Ala. 411, 413 ; City Nat. Bank v. Jeffries, 73 Ala. 183. The complaint in the present action contains no such averment, and consequently the plaintiff was not authorized to recover more than actual damage.

The second charge requested by the plaintiff, and given by the court, authorized the jury to return a verdict for tlie plaintiff for exemplary damages. Under the pleadings in this cause, only actual damages'were recoverable. The court erred in giving this instruction.

Section 2999 of the Code without material change has existed at least since the adoption of the Code of 1852. Since that time pleadings framed to recover damages on attachment bonds have been frequently a matter of judicial construction. Wherever the question has been directly involved we have always held, that in order to recover exemplary damages, it was necessary to aver “that the attachment was sued out without the existence of probable cause for believing the alleged ground to be true. This was distinctly declared in the well considered case of Bank v. Jeffries, supra. We are not prepared to hold as- stated in this charge, as matter of law, “that if no statutory ground existed for the attachment, and that defendant did not reasonably believe that one did exist,” that plaintiff was entitled to recover punitive damages. These facts are evidence to be considered by the jury, and it is for the jury to say from these facts and all the evidence whether the attachment was maliciously sued out.

As to the first charge given, for -the plaintiff, it may not be true as a universal proposition that the wife has a right to pledge her property for any and every purpose (Code, § 2349). We are satisfied the offer to do so, or even the pledge when it could be done, would not furnish cause of attachment when there was no fraudulent intent. There was no error in giving this charge.

Reversed and remanded.