Mars v. Germany

Holden, J.,

delivered the opinion of the court.

ON SUGGESTION OR ERROR.

This case was recently affirmed without an opinion by this division. The suggestion of error now before us presents a new point which was not made by the appellant on the main presentation, and that is that the recovery of one hundred and twenty-five dollars by the appellees as attorney’s fees and expenses in attending the trial was wrongfully allowed by the lower court because the defendant in the replevin suit cannot recover this character of damages, unless willfulness, malice, or fraud is shown.

The case of Thornton v. Gardner, 99 So. 131 , recently decided by Division B of this court, expressly sustains the point made by the appellant on this suggestion of error. The two cases are practically identical, and we shall follow that decision and affirm the lower court in the case before us in all respects, except that the recovery of one hundred twenty-five dollars as damages for attorney’s fees and attendance at court must be annulled, and nominal damages in the sum of one dollar only will be allowed the appellee.

It is true, the general rule is that we do not consider new points made first on suggestion of error; however, it is optional with the court as to whether it will consider a point first made by suggestion of error, and in the in *390 stant case we think the complaint of appellant is so pregnant with merit that we have decided to sustain it.

Therefore the judgment of the lower court is affirmed, and the amount of damages allowed appellee is reduced to the sum of one dollar.

Overruled in part, and sustained in part.