Goldstein v. Drysdale , 148 Ala. 486 ( 1906 )

ANDERSON, J.

— Conceding that the special pleas to Counts 2 and C were proven beyond dispute, the defendant was not entitled to the general affirmative charge as to the whole complaint, unless the plaintiff was not entitled to recover under the other counts. The other counts were not upon the bond for the mere wrongful suing out of the attachment, but are in case for a wrongful, malicious, and without probable cause suing out of the attachment ,and in like manner • causing the same to be levied. Plaintiff cannot therefore, recover under said counts, if the attachment was only wrongfully sued out, but must prove that it was sued out wrongfully, maliciously, and without probable cause.—Brown v. Master, 104 Ala. 451, 16 South. 443. The attachment was sued out to enforce the collection of certain notes signed by Fannie Drysdale and her husband and payable, to the defendant, Goldstein. There was judgment in favor of said Fannie Drysdale, from which it does not appear that an appeal was taken. The judgment was, therefore, conclusive that the debt for the collection of which the attachment ivas sued out was not owing by Mrs. Drysdale, the plaintiff in the present suit, and was, therefore, wrongfully sued out as to her. —City Nat. Bank v. Jeffries, 73 Ala. 183; Stewart v. Cole, 46 Ala. 646. The plaintiff having shown that the attachment was wrongfully sued out, it was for the jury to determine whether or not it was done maliciously and without probable cause.— Alson v. Lidden, 130 Ala. 548, 30 South. 401; Lunsford v. Deitrich, 93 Ala. 565, 9 South. 308, 30 Am. St. Rep. 79.

Appellant insists that the complaint claims in the conjunctive, not only for the wrongful and malicious suing out of the attachment, but for procuring in like manner a levy and seizure, and that plaintiff cannot recover, in the absence of proof in support of both aver-ments. Conceding the soundness of the insistence, there was evidence that Goldstein directed the levy. If he did so with knowledge of all the facts, it was also a question for the jury to determine whether or not he caused the seizure and whether or not he did so maliciously and without probable cause. Fulford testified: “I did not levy- the attachment when I first went there that morning. * * * I saw Mr. Goldstein after I Avent down the first time, and before I Avent back the second time. * * * He said I must get enough, if I had to get it all. * * * He told me to taire the carpet; take anything that AAras necessary, and the carpet, too, if necessary.” If Gold-stein directed the levy, he Avas liable as a co-trespasser.—Brock v. Berry, 132 Ala. 95, 31 South. 517, 90 Am. St. Rep. 896.

This court has held, in cases of this character, where the existence of malice is essential to a recovery, and the defendant does not make the affidavit until he Avas advised to'do so by an attorney, after all the facts had been fairly submitted, that these facts, AAdien proven, are a complete defense to the action.—Shannon v. Sims, 146 Ala. 673, 40 South. 574; O’Neal v. McKinna, 116 Ala. 620, 22 South, 905; National Surety Co. v. Mabry, 139 Ala. 217, 35 South. 698. It is a question, liOAvever, for the jury to determine whether or not the defendant made a full and fair statement to Mr. Pitts, his attorney.—McLeod v. McLeod, 73 Ala. 42.

The trial court erred in giving the affirmative charge for the defendant, and properly granted i the motion for a new trial, and the judgment in so doing is affirmed.

Affirmed.

Tyson, C. J:, and Dowdell and McClellan, JJ., concur.