Rowe v. Crutchfield , 1914 Tex. App. LEXIS 1162 ( 1914 )

This suit was originally instituted in a justice court by T. A. Rowe against Marion Crutchfield and John Vaultz upon a promissory note executed on the 22d day of December, 1996, by Marion Crutchfield, Eliza Crutchfield, and John Vaultz for the sum of $60, and bearing interest and providing for attorney's fees as usual in such cases.

The defendants answered that Eliza Crutchfield was the principal, and that defendants were but sureties; that said principal had died since the execution of the note with administration upon her estate; and that the note had never been presented to the administrator for payment; and hence that the plaintiff was estopped. In addition to this plea they specially pleaded damages in the sum of $150, because of an alleged wrongful issuance and levy of an attachment.

Upon the disposition of the case in the justice court, it was appealed to the county court and again tried upon the issues stated where the plaintiff, upon the verdict of a jury, was adjudged the amount sued for on his note, with interest from its date, less the sum of $75 found by the jury as damages because of a wrongful issuance and levy of the attachment. The amount of the judgment in plaintiff's favor after the deduction stated was $24.50.

Substantially the only question presented by appellant's assignments of error is whether the evidence supports the verdict of the jury in appellee's favor on the issue of damages. We are of the opinion that the assignments raising this question must be sustained. The evidence tending to support the issue amounts only to proof that an attachment was issued, levied, and later quashed, and that, at the time of the levy of the attachment, the appellee Marion Crutchfield "had stuff out of which the plaintiff could have collected his debt." Appellee also urges evidence to the effect that, prior to the institution of the suit, the defendant had offered the plaintiff "$50." The writ of attachment, however, was not offered in evidence nor the circumstances of its levy shown. It merely appears that it was levied and later quashed. The ground upon which the writ was quashed is not shown. It appears that, after the levy and quashal of the writ, the property was returned to the defendant Crutchfield. All he testifies upon the subject is: "I think they set aside that attachment up there some way. They did not hold my stuff." There was no showing that the allegations in the affidavit of attachment were untrue. For aught that appears in the record, the defendants may have had the property referred to in their testimony, and yet it might have been true that they were about to transfer the same for the purpose of defrauding their creditors, or some other ground authorizing the writ may have in fact existed. Neither is there any evidence referred to tending to show the character of the property levied upon, whether real or personal, how long it was retained by the sheriff, nor that it was in a damaged condition when returned, nor that the defendants were entitled to recover for its use and detention, nor that the amount of $50 was all that was due upon plaintiff's note at the time of the offer. Something more than this, we think, must be shown to authorize the imposition of compensatory damages for the issuance and levy of an attachment. A defendant is not entitled to damages as of course upon the mere issuance and levy of a writ. In order to recover even nominal damages, some actual damage must be shown. See Jordan v. David, 20 Tex. 712; Gardner v. Bell,14 Tex. Civ. App. 356, 38 S.W. 239; Hume v. Netter A. Geismar Co., 72 S.W. 865; Seal v. Holcomb, 48 Tex. Civ. App. 330, 107 S.W. 916. We are of the opinion, therefore, that the verdict and judgment in behalf of appellees for damages in the sum of $75, as recovered by them, should be set aside.

Appellees also complain and ask for a reversal of the judgment by cross-assignments of error. These assignments are numbered first, second, third, fourth, fifth, sixth, seventh, and eighth. They follow each other consecutively, but none of them are followed by appropriate propositions or statements, as required by the rules, and hence cannot be considered, as has been many times determined in like cases.

The record discloses that appellee Marion Crutchfield, whose property it seems was levied upon, testified as a witness upon the trial, and there is nothing to suggest that upon another trial his testimony would be other or different on the issue of the wrongful issuance of the attachment. Under such circumstances, we hardly feel justified in remanding the case merely to afford said appellee an opportunity to offer additional evidence that may possibly exist. We accordingly conclude that the judgment should be reversed and here rendered for appellant for the amount of his note, together with interest and attorney's fees, as shown in the evidence, and denying appellees any recovery on their cross-plea for damages.

Judgment accordingly.