Spillman v. Weston
Spillman v. Weston
Opinion of the Court
Appellee sued appellant in the court below for past-due debt, aided by attachment issued on affidavit that appellant was about to dispose of his property with intent to defraud his creditors. Appellant, by his pleadings, admitted the debt, but sought damages by reconvention on the ground, in substance, that the attachment was wrongfully and maliciously sued out, and specified certain actual and exemplary damages. At trial general demurrer to the plea was sustained, and the jury peremptorily instructed to return verdict for the debt, which was done, and judgment accordingly entered, from which this appeal is perfected. The only issue presented therefore is the court’s action in sustaining thé general demurrer. As a consequence, it is necessary to relate the substance of the material facts, admitted by the demurrer to be true, which are these: About two days prior to levy of attachment appellant informed appellee that he was about to secure a loan of $800, to be secured by a secondary lien on the land levied on, out of which he intended to pay the semiannual interest of $72, which would mature November 25, 1915, on a pre-existing note of $1,800 against said land, secured by deed of trust, and appellee’s debt; appellant had, in fact, applied for such a loan from one W. G. Scarff, which had been granted, and the money about to be advanced when the attachment was levied, and upon learning which said Scarff refused to advance the money; appellant was unable to secure money upon any other lands or from any other source save the land levied on by appellee, which the latter knew; when the semiannual interest matured November 25, 1915, appellant defaulted in its payment, and the owner of said $1,800 note, as he had the legal right to do, after waiting until February 19, 1916, declared the entire debt due and placed same with an attorney for collection, who advertised same for sale under the trust deed securing its payment, incurring an expense of $10 in that respect, and, which resulted in adding to the principal and interest an additional sum of $190.9S, attorney’s fees; in order to prevent a sale of the land appellant finally induced said Scarff, in consideration of a bonus of $150, to acquire said $1,800 note, accumulated interest, added attorney’s fees, and $10 incurred expense in advertising said land, who agreed to carry same for a reasonable length of time; the attachment was wrongful and without probable cause, and maliciously issued in order to vex and harass appellant, and as a result of which appellant was actually damaged in the amount of said attorney’s fees, the expense incurred in advertising his property, and the bonus paid said Scarff, and because of the malice of appellee in suing out said attachment, suffered exemplary damages in the sum of $645. As we have indicated, for the purpose of the demurrer the facts alleged are to be taken as true. Then, the question is, Are the items of expense enumerated and incurred by appellant as the result of the wrongful and malicious' levy recoverable?
For the reasons indicated, the judgment is affirmed.
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Reference
- Full Case Name
- Spillman v. Weston.
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