614 SUPREME COURT OF ARKANSAS, [37 Ark. Boatwright et al. v. Stewart. BOATWRIGIIT ET AL. V. STEWART. I. ATracirmiarr: Measure of damage, when wrongfully sued out. When an attachment is discharged, and the attached 'property restored .to the defendant, then, in a suit upon the attachment bond, upon showing that the attachment was wrongfully sued out, the measure of damages is the actual loss from being deprived of the use of the property, the injury to it, and the expenses incurred in defending the attachment proceedings. But when the attached property is totally lost by means of a wrongful attachment, and only then, the measure of damages is the value of the property when attached. 2. SAME • Liability for waste of attached property. When an attachment is wrongfully sued out, the plaintiff and his surety on the attachment 'bond are liable for sny waste occurring to the attached property in the hands of the officer levying the attachment, and for all damages resulting from the seizure: 3. AITACIIMENTS : Wrongful, evidence of, in actions on attachment bond. If the affidavit for attachment be controverted, and the issue be determined in favor of the defendant, and the attachment be thereupon discharged; the judgment will be conclusive in an action against the plaintiff and his surety on the attachment band, that the writ was wrongfully issued. But if the . judgment of discharge be for informality of the affidavit, and not its falsity, then it will not be suffi-Cleat proof that the order was Wrongfully sufhi out.
37 Ark.] NOVEMBER TERM, 1881. 615 Boatwright et al. v. Stewart. 4. SAME: Action on attachment bond for damages. It is not necessary to the recovery of damages, by an action on an attachment bond, that the jadgment in the original action, discharging the attachment, should fijc the amount of the damages. APPEAL from Arkansas Circuit Court. HON. ROBERT H. CROCKET, Special Judge. B. C. Brown, for -appellants: 1. The onus was on appellee to show a "wrongful" suing out or obtainment of the attachment. The attachment was dissolved for informalities in the affidavit and proceedings before a justice, and the dissolution of an attachment for informality is not proof that it was wrongfully sued out. ' Sharp v. Hunter, 16 Ala., 765; Pettit v. Mercer, 8 B. Mon., 51; Smith v. Story, 4 Humph., 169; Tiller v. Shearer, 20 Ala., 527; Kirkland v. Cox, 1 Jones, N. C. L., 428; Winchester v. Cox, 4 Greene, Iowa, 121; White v. Dingle, 4 Mass., 433; Lindsay v. Lamed, 17 Maft, 190; Vandusor v. Linderman, 10 Johns., 106; Cooper v. Hill, 3 Bush., 219; Drake on. Attach., sec. 170. 2. Defendants not liable for injuries to property wMle in custody of the officer. Drake on Attachment, chap. 12. 3. It was error to charge the jury that in "actions of this character" the damages were the value of the property seized, without regard to wl-,et became of it. 4. The fifth instruction for plaintiff was erroneous, as it lcft no question for the jury but the one whether the suit was biought within five years, and to ascertain the value of the property received. ENGLISH, C. J. This was a suit upon an attachment bond. The ,history of the attachment suit, as stated in
616. SUPREME COURT OF-ARKANSAS 0 . 7. Ark. . Boatwright et al.-. v. Stcwart.'. Mears et al. v. Stewart; 31 17,.. is briefly as- follows:On the fourteenth . October,. 1873, Mears .S6 . -.Boaright sued George W. Stewart, on an open account., for $215, before a Justice of the . Peace , of Arkansas county. .- They • filed with the 'account 'an affidavit, and „Cade ,: form: • of bond for attachment, which seems to have been issued, and : not returned by the Constable._ .tha . the , . twenty-seventh, Of October, 1873, defendant appeared; there was a trial by jury, and verdict and judgment in , favor . of-. plaintiffs for $191.25, -and defendant 'appealed to the Circuit Court. that court -defendant meved to quash the:attachment., on . the, gTound of informality, of the . affidavit -on which . -, it. w:- ;- issued . by the justice of the :Peace.- Plaintiffs filed du amendment - to . the affidavit, but the' court sustained the. motion • of the defendant, dissolved the . i attachment, • rdered an- inquest of damages, - which were' assessed . by a .1 tiry at $240,- and'rendered judgment up:in the verdict. The .originar cause of action . on which the appeal was taken:was then tried,.. and- verdict and judgment Were- rend6red in 'favor' of' plaintiffs (sixth April, 1875,) for $125. The plaintiffs brought eirOr to. the judgment against them for dama'ges,' and- 'this , court reversed it, because there' was no Statute . in . feree .at the:.time the. judgment was, rendered; authorizing the damages Of 'the defendant to be .assessed in -Elle attachment suit; on. the • dissolution of the attachment. The court said thatif the attachment. was wrongfully sued (nit, and defendant .damaged thereby, he had the 'right to resort to‘•a common law aCtiOn; or -a suit upon' the Cade bond to . recover . damages. - : , The present actio:t upon the . attachment bond was : com, menced in the Circuit Court of Arkansas county, on the seventeenth' of 'Novetnber; 18.79,- by- . George W. Stewart, 'the - defendant in the' -attachMent . 'suit,' against .. Green-- W. Boat-. S
,37 Ark.] 'NOVEMBER TERM, 1881:. • '617 Boatwright et al..v. SteWart. Wright: one Of the Principals in the' bo d, and Henry . Young, the . Surety. • The • coMplaint alleges, in snbstance, that on: the fourteenth of -October; 1873, 'Mears & Boatwright coMmenced actiOn by • attaChnient against plaintiff; before W. F. Ne*- ton, a Justice of the Peace; etc.. That in accordance :With laW, -dry executed d: bond, with. ' HenrY . Young a snrety, conditiOned 'that they Would pay this plitintiff all * damageS he might suStain by- reasen • d' • the' , 'aCtion 'if • 'the order bf attachinent was 'WrongfullY • 'obtained ; Whieh. hOnd 'is set 'out. aS follows: • "We undertake and are bound to defendant for . .all • damages lie niay ' ' sustain' by reason a this action; if the order therefor is . wrongfully obtained:"- • Plaintiff further allegeS that 'after • Mears & BOatwright "had filed the' affidavit as reqnired by law; . and • given the bond, of *which -the foregoing iS • a.' true CoPY,7 au 'attachinent was isSued by said •jitStice,• 'direetcd 6-the' ednstable;' etc:, WhO levied it 'upon three thonsand 'pound's of seed. cOtton, .fifteen aCres of cotton in:the *field, and' a• barhorSe, the Property 6f.the That the Suit • was tried befere• the 'juStice on the thirtieth 6f October, 1873; and . jUdgnient rendered agaMst this plainti#, frora which he prayed • and 'obtained' an appeal, ' in' aceordance with, and within the time prescribed by laW: 'That said. JuStiCe of the Peace ordered the proPerty attached...6' be• sold, 'on account of its liability tO waste, and that the' prOceedS be held' subject to the final 'disposition of the •-• That '"on' the 'trial Of said ease"' in *the *Circuit' 06nrt, at the spring . term, 1875, on appeal, the attachment was' set aside;" .• diSsOlVed 'and hga for *naught, and judgment Was yen-dered fOr this 'plaintiff "kir $240, • as • daniageS he had snS-tained by reason of the issuance of said att q chment; from
618 SUPREME OOURT OF ARKANSAS, [37 Ark. Boatwright et al. v. Stewart. which judgment Mears & Boatwright "took an appeal to the Supreme Court," and at its May term, 1876, the judgment was reversed, the court deciding that there was no law at that time authorizing a writ of inquiry to assess damages, and that suit should bave been brought on the attachment bond. Plaintiff further alleges that after Mears & Boatwright had "taken an appeal," and given a supersedeas bond, they obtained an order from the Circuit Court requiring the constable to pay over to them the proceeds of the sale of the property attached, and that the same were paid to them, and nO part thereof has been paid to plaintiff. That plaintiff had been damaged in the sum of $700.00, by reason of said suit, and the wrongful suing out of said attachment, and neither Mears &F Boatright, nor Henry Young, had paid plaintiff said damages, and that Mears had become a non-resident; wherefore, he prayed judgment against defendants Boatright and Young for $700.00. After deniurrer to the complaint had been interposed, and overruled, defendants filed an answer with two paragraphs. In the first they denied that said order of attachment was wrongfully obtained; and, in the second, they alleged thqt the said supposed cause of action, in the enmplaint mentioned, did not accrue to plaintiff at any time within five years next before the commencement of the suit. The issues were submitted to a jury, and, upon the evidence and instructions of the court, hereafter noticed, a verdict was returned, and judgment rendered in favor of plaintiff for $500.00 damages; a motion for a new trial was overruled, bill of exceptions taken, and defendants appealezi to this court. I. The court charged the jury, against the objections af aPpellants, that ail of the material allegations and state-
37 Ark.] NOVEMBER TERM, 1881. 619 Boatwright et al. v. Stewart. ments of the complaint, not denied by their answer, were admitted to be true. The giving of this instruction was not made a ground of the motion for a new trial; but, it may be remarked, that the Code rule is, that "every material allegation of the complaint, not specifically controverted by the answer, etc., etc., must, for the purpose of the action, be taken as true. .* * * Allegations of value, or of amount of damage, shall not be considered as true by the failure to controvert them." Gantt's Dig., See. 4608. II. In the second, third and sixth instructions, moved for appellee, and given, against the objection of appellants, the court charged the jury, in effect, that if the action on the bond was commenced within five years from the time of the dissolution of the attachment, it was not barred by the Statute of Limitation. It is not insisted by counsel for appellants that this ruling was an error. - Appellee read in evidence, from the record, the order dissolving the attachment, which was made at the March term (perhaps the sixth of April), 1875, not "on the trial of the case," as alleged in the complaint, but on his motion. This suit was commenced, seventeenth of November, 1879, hence five years had not transpired between the dissolution of the attach-, ment and the bringing of this action, and it was not barred by, the Statute of Limitation. III. The fifth instruction moved for appellee, and given by the court, against the objection of appellants, -was that: "The measure of damages in an ac-1. Attach-meats: Measure tion of this nature, is the value of the property of dam a- ges f o r at the time of the seizure of the same under wrongful suing out. the order of attachment." The giving of this instruction (erroneous as it is as , a general proposition,) was not made a ground of the motion for a new trial; but the sixth instruction moved for appellee,
620 SUPREME COITRT OE' "ARKANSAS, [37 -Ark.' Boatwriht et . "al: "v: Stewart.. and-given by the court, against the' objection of 'appellants, and the giving of which was made ground of the Motion 'for a;new • trial, "If the jury believe' from the evidence that' the attachment, etc., waS : dissthed Within five 'years- neXt before the' commencement' of *this Suit, they will' find for:' the plaintiff,' etc., "the value of the-property " attached:in Said attachment suit at the- thne of 'the" seizure -Under said attachment, and . render a verdict for the ameunt that the evidence shoWs the-property was worth, with interest at the rate of * six per cent per annum' frOin the da-t , ef the 'seizure under the attachment." Mr. SEDOWICK says : In s " uits'ori• statutory undertakings and bonds • giVen- to . 'secure a" defendant against-damages and costs resulting' from an . attachment,' etc:, Wrongfully issrued, the measure of damages is substantially indicated by the terms of 'the, inStrument as authorized . by the Statute; and is the' actual expenses and loss occasioned by the writ, or order, ekclud-ing rembie damages. SedOvick on, Daonages, 6th 'Ed., p. 488, in note 2. In Holliday. Bros. v. Cohen, 34. Ark., 707, a sthrehouse and "goods were attached; 'and, in a feW daYs; released; ten bales of ' cotton'. were also attached, and, in' four 'days, bonded' by" defendant. Defendant . .centroVerted the truth of the 'affidavit for the attachment, "and there . was a verdict in his favor, and his damages assessed . (under the 'Act of tenth of November, "1875,) at $4,000: On' appeal, the judgment was reversed on several grounds,' and - among them that the damages were eXceSSive. The' court said: "In such cases, -the . damageS "ninst be coMpensatory: ' merely; and confined tO ' the actual loss frOm : deprivation of the property attached, or injury to it; or, in Case of closing business, -to the. "probable Profits of the business during the term of its stoppage. Injury " to' . credit;:' and loss of 'Pres-
37 .Ark.] NOVEMBER TERM, 1881: : 621 Boatwright et al. v. Stewart. pective profits thereby, is too remote and speculative. Damage from that cause can not be , assessed in an action on the bond, 01 in the attachment suit If recoverable at all, it must be in a separate action on the case." In this case, if the cotton and horse attached had remained in custody of the officer until the attachment was dissolved, they would have been restored to appellee, as he did not bond them. Gantt's Digest, Sec. 424., Then in a suit upon the attachment bond, upon a showing that the attachment was wrongfully sued out, the measure of damages would have been the actual loss from deprivation of the use of the property, injury to it, and expenses incurred by him in defending the attachment proceedings. Drake on Attachments (5th Ed.), Sec. 175. The complaint alleges that the Justice of the Peace ordered the property attached to be sold, on account of its liability to waste, and that the proceeds be held subject to the final disposition of the case. • When this order was made, whether a sale was made under it, and, if so, when and what sum of money the property was sold for, is not alleged in the complaint It is alleged, further on in the complaint, that, after the plaintiffs in the attachment "had taken an appeal," from the judgment on the inquest of damagvs, they obtained an order of the 'Circuit Court requiring the constable to pay over to them the proceeds of sale, of the property attached, and the same was paid to them, and no part thereof ,to plaintiff in this suit. Taking this to be true, the proceeds of sale must have 13een applied, by the order of the Circuit Court, upon the judgment which the plaintiffs in the attachment suit had obtained in that court against appellee for their debt, etc., and so, in that way, he got the benefit of the proceeds of the sale of the property, attached. ,
622 SUPREME COURT OF ARKANSAS, [37 Ark. Boatwright et al. v. Stewart. It was, therefore, an error for the court to direct the jury to assess appellee's damages at the yalue of the property when attached, with interest, making no deduction for the proceeds of the sale, which had been applied to the • judgment against him. It could only be . where the property is totally lost by means of a wrongful attachment, that its value, when seized, would be the measure of damages. Drake on Attachment (5th Ed.), Sec. 175. On the trial,- appellee introduced in evidence an execution issued by the Justice of ;the Peace, thirty-first of October, 1873, upon the judgment 'rendered by him in favor i of the plaintiffs in •the attachment . suit, and it appears from an endOrsement made upon it by the constable, that Abe attached property was sold at a public sale, made under the execution, for $119.64. It was, perhaps, the proceeds of the sale that the Circuit Court ordered to . be applied to the judgment recovered by the plaintiffs in the attachment suit on the appeal from the judgment of the Justice.. , The allegations of the complaint are vague and inaccurate' as to the attachment proceedings, but it has nof been insisted here' that the court below erred in overruling the demurrer to it. IV. The court refused all of the instructions moved for ap-pella.nts, the fifth of which was, in substance:, • f^r •-•^0-e "If the jury believe from the evidence that the of attach- ed proper- property seized under the attachment, was wast-ty. ed in the hands of the officer levying the attachment, the defendants in this suit are not, nor were they, .responsible for such waste. The property attached . was in custody of the constable from the time of its seizure, about the middle of October, to the time of the sale, which oceurred some time in Decein-ber. There was evidence conducing to prove that, during that period, the cotton in: the field was damaged, and that the seed cotton, which was in a house when attached, was
37 Ark.] NOVEMBER TERM, 188.1. . 623 lk g awright et aL v. Stewart. removed to a pen, and also damaged, and that both brought less at the sale than their value when attached. But for the attachment appellee might seasonably have gathered, housed and prepared for market the cotton in the field, and taken care of the seed cotton, but he was deprived of the management during the time they were in custody of the officer, under the attachment. We have shown above, that in a suit upon an attachment bond when the attachment is wrongfully sued out, the plaintiff may recover actual damages. "On general principles," says Mr. DRAKE, "it must be the natural, proximate, legal result or consequence of the wrongful act. * * * Actual damage may be comprehended under two heads: 1st. -Expense and losses incurred by the party in making his defense to the attachment proceedings; and 2d, The loss occasioned by his being deprived of the use of the property during the pendency of the attachment, or by an illegal sale of it, or by injury thereto, or loss or destruction thereof." Drake on Attachment (6 Ed.), Sec. 175. Whatever may be the liability of the officer for negligence or want of proper care of the property while in his custody under an attachment, no doubt the plaintiff, and his surety on the bond, are responsible for such damage to the property attached, as may be the result of the seizure, when the writ is wrongfully sued out. The court did not therefoie, err in refusing the fifth instruction moved for appellants. V. Before considering the further and onl;r additional point made here upon the other in; S. Attachanent Wroneitil: structions moved for appellants, and refused by Evidence of, actions on at-the court, it is necessary to refer again to th'e. tachment bonds pleadings and evidence. The Statute prescribes the grounds on w1ch an attachment may be obtained (Gantt's Dig.; Sec. '38 ), and that an
624 SUPREME -.COURT OF .ARKANSAS,[37. Ark. Boatwright et al. v. Stewart. -order- of -attachment may be made on an affidavit . the nature of the claim, that it is just, the amount, etc., .and the exi g ence in the•action of some one of the greunds 'prescribed, etc.. Th.,389: . The order for 'attachment is not to be issned Until a bond .is executed; conditioned that q plain-'tiff. shall paytdefendant all damages which he may sustain by reason of the attaehment, if the order is wrongfully obtained," lb. 391:: • The complaint alleges 'that the' plaintiffs in the attachment Snit., filed -the affidavit', required ,: by law, and gave the • bond • sued on.• ..The : affidavit is not:set out in the comPlaint, nor was it introduced .as evidence on the trial, nor..was it .alleged or...proven-,tha.t • any ground for attachment stated in it was untrue, -nor f was its. truth 'controverted in the, : Circuit Court .on appeal, nor does it appearto haVe been controverted 'before, the justice: • .. • ••• • The . eomplaint alleges. in general <terms . ..that . plaintiff • had been damaged by the wrongful suing Mit of the attachment. ,-The answer-denied that the order ofattachment was wrong-• fully obtained. This made. the material issue in the case. , Had appellee controverted, the, affidavit, as he might . :have done, if he deemed any Of its material : statements : false,. (lb.; Sec. 457) and -had such issue been determined -in. his ,favor, and the attachment thereupon dissolved, • the -jUdgment would have been• conclusive in this.suit upon . the •bond; -that the order of attachment was wrongfully , . obtained.- ..Dralee on Attachment (6 Ed.):,' Sec,. 173; Mitchell v. , .Mattinalu, 1 Metcalf . (Ky.), 237. '-• .Under . the issue made, some•proof was required of• appellee that ' t6•:order:pf attachment was wrongfully obtained. ...Drake on Attachments, 6 Ed., Sec. 173; Burrows. et al:• Lehndórf, 5 Iowa, Hagge, 193'. :The order. , Of -. the court dissOlving , the: • attachnient, on. his Inotion, was the only evidence introduced by appellee to
27 Ark.] NOVEMBER TERM; 1881. 625' Boatwright et al. v. SieWart. prove that the order of attachment was wrongfully obtained. Appellants read in evidence the motion upon which the: order was made. No doubt; as was said in Mears et al: v. Stewart, 31 Ark., 17, the motion was sustained on the grounds of some informality -in the affidavit. There was nothing ' else in the motion on which the court would probably, or should have sustained it. The first ground of the motion questioned the sufficiency of the affidavit. The second was that there was no writ of attachment. If none issued, there was none to quash. It appears that the writ had been lost, which was no cause of quashal. The third was that defendant (appellee here) had not been. served with a summons, or notice of attachment. These he waived by appearance. And the fourth was that he filed an affidavit before the justice for a. change of venue, which *as overruled. This. was no . cause for dissolving the attachment in the Circuit Court on appeal The case stood for trial de novo there. Th . e obje . ction to the affidavit *as matter . in abatement -of the attachment The order dissolving the attachment for inf,ormality in the affidavit, which may have been the fault of the justice in drafting it, was not sufficient proof that it was wrongfully Sned but —that there were no grounds for it. Bishop v. Bradford, 16 Alm., 769; Drake on Attachments (6 Ed.), Sec. 170, etc.; Pettit et al. y. Mercer, 8 B. Monroe, 51; Winchester et al. v. Cox et al., G. , Green, Iowa, 4, 121. See also Vorge v. Phillips, 37 Iowa, 429 ; COoper et al. v. Hill, ad., 3 Bush. Ky., 219; Kirkham v. Coe et a2., 1 Jones, N. C. L., 429 37 , Ark.-40
626 SUPREME COURT OF ARKANSAS, [37 Ark. The first and second instructions moved for appellant were substantially in accordance with the above rule. The third related to limitation and was properly refused, because it proposed to submit to the jury the legality of the judgment dissolving the attachment. The fourth was also properly refused, because it asserted the 4. Action erroneous proposition, that no damage could be .on bond for dama-recovered in this action on the bond, unless there ges. . had been a judgment in the original attachment suit fixing the amount of damage. The judgment is reversed, and the cause remanded for a new trial.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.