Garlington v. Cotten

In his plea in reconvention appellee alleged that just prior to the time when the suit was instituted he had contracted to sell the land to one Kidd for a sum $500 in excess of the sum due appellant on the notes sued upon; that the statement made by appellant in his application for the writ of sequestration that he feared appellee would make use of his possession thereof to injure the premises during the pendency of the suit was false, and known by appellant to be so at the time he made it; and that appellant's real purpose in procuring the issuance and execution of the writ was to obtain possession of the land at once so that he could, and appellee could not, sell and deliver possession thereof to Kidd. Appellant excepted to the allegations in the plea, so far as they referred to a sale of the land to Kidd, and complains of the action of the court in overruling his exceptions. The ground of the exceptions was that damages, if appellee suffered any, by reason of appellant's interference as charged in the negotiations with Kidd, were too remote to be made the basis of a recovery. It is a sufficient answer to the complaint to say that it is apparent from the plea as a whole that the allegations were not intended by the pleader, nor treated by the court in his instructions to the jury, as a basis for the recovery of actual damages, but were made in support of the charge that appellant's acts in procuring the issuance and execution of the writ were malicious.

The contentions made, that the verdict, in so far as it was for appellee for $400 as actual damages, was excessive, and in so far as it was for appellee for $75 as exemplary damages, was without evidence to support it, must be overruled. It appeared from appellee's testimony as a witness that the damage by rain to his household goods moved by the sheriff from the dwelling house was $75; that the value of the use of the land while he was deprived of it was $150; and that the land was damaged while he was excluded from its possession from $500 to $1,000. The jury had a right to believe this testimony, and, evidently, they did believe at least a part of it. As to the exemplary damages, there was testimony, we think, which authorized the jury to find that the writ of sequestration was wrongfully and maliciously sued out and executed.

There is no error in the judgment, and it is affirmed.

On Motion for Rehearing. Further consideration of the record has convinced us that we erred in holding there was testimony to support the finding by the jury of exemplary damages in favor of *Page 296 appellee. Therefore the motion will be granted, the judgment of this court affirming the judgment of the court below will be set aside, and judgment will be here rendered so reforming the judgment of the court below as to decree a recovery by appellee of only the actual damages found in his favor, and, as so reformed, the judgment of that court will be affirmed.

WILLSON, C. J.

(after stating the facts as above). [1] In his plea in*reconvention ap-pellee alleged that just prior to the time when the suit was instituted he had contracted to sell the land to one Kidd for a sum $500 in excess of the sum due appellant on the notes sued upon; that the statement made by appellant in his application for the writ of sequestration that he feared appellee would make use of his possession thereof to injure the premises during the pendency of the suit was false, and known by appellant to be so at the time he made it; and that appellant’s real purpose in procuring the issuance and execution of the writ was to obtain possession of the land at once so that he could, and appellee could not, sell and deliver possession thereof to Kidd. Appellant excepted to the allegations in the plea, so far as they referred to a sale of the land to Kidd, and complains of the action of the court in overruling his exceptions. The ground of the exceptions was that damages, if appellee suffered any, by reason of appellant’s interference as charged in the negotiations with Kidd, were too remote to be made the basis of a recovery. It is a sufficient answer to the complaint to say that it is apparent from the plea as a whole that the allegations were not intended by the pleader, nor treated by the court in his instructions to the jury, as a basis for the recovery of actual damages, but were made in support of the charge that appellant’s acts in procuring the issuance and execution of the writ were malicious.

[2] The contentions made, that the verdict, in so far as it was for appellee for $406 as actual damages, was excessive, and in so far as it was for appellee for $75 as exemplary damages, was without evidence to support it, must be overruled. It appeared from appellee’s testimony as a witness that the damage by rain to his household goods moved by the sheriff from the dwelling house was $75; that the value of the use of the land while he was deprived of it was $150; and that the land was damaged while he was excluded from its possession from $500 to $1,000. The jury had a right to believe this testimony, and, evidently, they did believe at least a part of it. As to the exemplary damages, there was testimony, we think, which authorized the jury to find that the writ of sequestration was wrongfully and maliciously sued out and executed.

There is no error in the judgment, and it is affirmed.

■tfe^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes