Orr v. Watson

PELHAM, J. —

The complaint filed in the court below seeks to recover damages for the breach of the conditions of a detinue bond executed by the plaintiff in the detinue suit, the appellant here, who brought suit on the bond, having been the defendant in detinue. The complaint as amended in the instant case claimed damages alleged to have been incurred by the plaintiff in defending the detinue suit, and the demurrers interposed by the defendant to this complaint were sustained by the court, and the plaintiff, refusing to amend or plead further, suffered a nonsuit in consequence or the adverse ruling of the court, and brings this appeal on the record to review such ruling.

The demurrers that seem to be most confidently relied upon to support the ruling of the trial court in sustaining the demurrers to the complaint set up a failure to aver in the complaint that the writ of detinue authorized by the bond was levied upon the property of the plaintiff (the defendant in detinue).

A form of complaint in an action for a breach of the conditions of a bond is provided by the Code (section 5882, No. 7, p. 1194), and the complaint to which demurrers were sustained follows this form in general outline, and sets out the condition of the bond and the breach complained of.

The language employed in describing the condition of the bond is coextensive with the statute under the provisions of which the bond was given (Code, § 3778), and shows that the bond was conditioned as the statute requires, and, as said in the case of Baker v. Pope, 49 Ala. 415, 418, in passing on the sufficiency of the allegations of a complaint in an action on a detinue bond, “the complaint sufficiently sets out and describes the bond, and it alleges a sufficient breach. That is enough.”

That the allegation of the breach is sufficient in averring that the plaintiff in detinue “failed in his said suit in detinue, in that he took a voluntary nonsuit,” seems to be settled by the decisions of this state.— Baker et al. v. Pope, 49 Ala. 415; Savage v. Gunter, 32 Ala. 467.

If no damage accrued, or the special damages claimed are not recoverable, in whole or in part, because of the fact that the writ was not levied, and the defendant seeks to avoid a recovery or mitigate the damages because of this, or for any other reason, these matters can be set up by appropriate defenses to the action, either in bar or pro tanto, as the case may be.

If it be shown that the bond conditioned as required by statute was breached, it would seem to follow as a general proposition that nominal damages at least would be recoverable; yet it is not to be overlooked that if the writ was not in fact levied on the property of the defendant in detinue it would also seem that the defendant had not been driven into the trouble and expense of defending’ the suit, and he could not subject the plaintiff to liability for special damages on account of the expense consequent upon the issue of the writ (Flournoy & Epping v. Lyon & Co., 70 Ala. 308) ; but however this may be, it is not necessary under the Code form that the complaint following this form, and setting out the conditions of the bond coextensive with the provisions of the statute and alleging a sufficient breach, should go further in its averments in stating a cause of action and allege a levy of the writ.

Other demurrers interposed are not well taken, nor do they seem to be seriously insisted upon.

We are of the opinion that the court was in error in sustaining the demurrers to the amended complaint.

Reversed and remanded.