Melone v. McDowell

Opinion by

Judge Peters :

Although Dobyns may have been insolvent on the 14th of November, 1870, and even after the 18th of November of that year, and no part of the debt then owing by him to appellee had been paid, still, as this action was not brought for more than one year after the failure of appellant to execute the summons and order of attachment on Campbell, Dobyns may have in the meantime become solvent, or for anything that is averred in the petition he may have been paid the debt to him. To make out a cause of action appellee should have averred that said debt was still owing by Dobyns to him and unpaid, and that by the failure of appellee to execute the summons and attachment he had failed to make the $152 of his debt, the amount Campbell owed Dobyns. The statement, that by the failure and\ refusal of appellant to' discharge his duty, he damaged the plaintiff in the sum of $152 is not sufficient — that is a mere conclusion of the pleader. He should have stated if the fact was so, that Dobyns was then insolvent; that his debt was unpaid, and by the failure of appellant to execute the summons and attachment on Campbell, Dobyns collected $152, the amount Campbell owed him, and by reason of Dobyns’s continued insolvency he had. lost said sum.

Harwood, for appellant. L. A. Weakley, for appellee.

Without an allegation of the non-payment of the money by Dob-yns to appellee proof of the fact would not avail him.

The allegation, as made in the petition and heretofore quoted, would at most entitle appellee to nominal damages only.

Nor does the answer cure the defect in. the petition; there is no admission therein contained, either direct or inferential, that Dob-yns owed the debt to’ appellee, when he instituted his action.

Wherefore the judgment is reversed and the cause is remanded with directions to award a new trial, and for further proceedings consistent with this opinion. If appellant should apply within proper time for permission to amend his petition he should be allowed to do so.