Hawkins v. James ( 1891 )

Woods, J.,

delivered the opinion of the court.

We are of opinion that, by the action of the respective parties to this litigation in the trial of the original suit by Wm. James v. Zelia Hawkins, that proceeding must be held to have been an ordinary attachment for a debt due for rent. The affidavit of the plaintiff was the proper affidavit for a distress warrant; but the parties have elected to regard and treat the subsequent proceedings as an ordinary suit in attachment, and we must regard and pass upon the present litigation in that view of the precedent suit. So, looking at that first suit of James v. Hawkins, we are constrained to hold that in the present proceeding the appellant was not entitled to double damages, under § 1311, code of 1880. That remedy is applicable only in actions against persons who have distrained and sold property of another for rent pretended to be due, when, in truth, no rent is due to the party distraining and selling. But, while thus holding, we do not see why the appellant should not have recovered for whatever actual damages she sustained by reason of the wrongful suing out of the attachment in the original suit. The record before us shows the seizure of about a bale of cotton, the property of the defendant in that suit, its delivery to James, the plaintiff therein, aud the final deprivation of appellant of even her bale of cotton, or its proceeds. While not entitled to the whole amount of the claim for damages set up, w7e are at a loss to understand why appellant did not have a recovery on the original attachment bond for her actual damages sustained by reason of the wrongful suing out of the attachment.

Reversed and remanded.