#### Ritter *et al. v.*Hoy *et al.*

*Garnishment.*

(Decided Nov. 16, 1911,

rehearing denied Dec. 14, 1911.

56 South. 814.)

1. *Appeal and Error; Harmless Error; Evidence.*— AVhere evidence is subsequently admitted its former exclusion is rendered harmless.

2. *Same; Instructions.*— Where the action was on a garnishment bond and the evidence as .to actual damages was confined to the tying up of the money bjr the service of the writ, and the effect it had on plaintiff’s credit, a charge authorizing such actual damages as was sustained, which would be the interest on the money for the length of time it was tied up, and such damages as resulted to plaintiff’s credit, was- harmless to the plaintiff.

3. *Same; Right to Allege.*— -A party cannot complain of the action of the court in overruling an objection to the admission of evidence interposed by the adverse party.

4. *Same; Questions Reviewable; Exceptions.*— Where no exception is reserved to a ruling on a motion to exclude evidence, such ruling is not reviewable on appeal.

5. *Evidence; Opinion; Conclusion—*Where the action is on a garnishment bond in aid of action on a note, a question seeking to -elicit the mere opinion or conclusion of a witness as to the amount due on the note, at the time of suing out the garnishment are properly excluded.

6. *Damages; Assessment; Evidence.*— Where the action is for actual damages which are uncertain, or have not been admitted, the burden of establishing the amount thereof by evidence is on the plaintiff.

*3597. *Garnishment; Action on Bond; Evidence.*— In an action on a garnishment bond the question whether one of the plaintiffs had been sued on a debt prior to the action on the bond was properly excluded as not affecting his credit, and hence not constituting an element of damage.

S. *Same; Damages; Jury Question.*— Where plaintiff in garnishment had writ served upon two banks, and the defendant gave bond as authorized by the statute and thereby had dissolution of garnishment on the day of the issuance and service of the writ, the question whether the issuance and service of the writ entailed on the defendant in the garnishment action any actual damages susceptible of ascertainment was one for the jury.

9. *Same Punitive Damages.*— Punitive damages cannot be assessed, where the garnishment was not sued out maliciously or vexatiously.

Appeal from Birmingham City Court.

Heard, before Hon. C. W. Ferguson.

Action by C. D. Ritter and another against F. L. Hoy and others on a garnishment bond. From a judgment for defendants, plaintiffs appeal.

Affirmed.

The court sustained defendant’s objection to the following question propounded by plaintiff to its witness Ritter: “State whether or not, at the time of the suing out of the garnishment in this case, you were a practicing attorney in Birmingham. I will ask you to state whether or not your co-plaintiff, Tribble, had been sued for debt prior to this action. What bank had you done business with up to the time of this action?” The fourth assignment of error is as follows: “The court erred in overruling plaintiff’s objection to the following question propounded to the plaintiff Ritter by the defendant: Mr. Hoy was trying to collect this note, wasn’t he?’ ■" The following questions were propounded to the witness Jaffe, objections -to which were interposed by the defendants and sustained by the court: “I will ask you to state whether or not, prior to the 26th day of January, 1910, Ritter had any credit at your place. Did not Ritter have a good credit in Birmingham?”

The charges referred to were as follows: “If you believe the evidence in this case, you must find a verdict *360for the defendant for actual damages, although after a consideration of all the evidence you are not thoroughly satisfied that the plaintiffs are entitled to punitive or vindicative damages. (2) The court- charges the jury that the garnishment was wrongfully sued out, unless it was actually necessary in order to obtain satisfaction of Hoy’s debt when judgment would have been obtained on said debt. If the evidence reasonably satisfies the jury that the garnishment was not necessary in order to obtain satisfaction of such judgment, they should find a verdict for the plaintiff for the actual damages done by the suing out of the garnishment, including any loss that the evidence may show the plaintiffs have sustained to their credit by the suing out of said garnishment; but the verdict should not exceed the amount of the bond sued on. The fact, if it was a fact, that the said Hoy honestly believed that a garnishment was necessary to the collection of his debt, is no defense to the plaintiff’s right to recover such damages, if. in fact the garnishment was not necessary in order to collect the debt. (3) The court charges.the jury that if they find, from all the evidence, ■ that the defendant Hoy sued out the writ of garnishment in this case for the purpose of harassing or vexing the plaintiff, that the jury may, at their discretion, award the plaintiffs punitive or vindicative damages, in addition to actual damages sustained by them. (4) The court charges the jury that as a matter of law, the plaintiffs are not required to show the amount of actual damages, but this is a question for the jury. (5) The court charges the jury that under the law in a case like this plaintiffs are not required to prove the amount of actual damages, but it is sufficient if they show facts from which the jury cafi'by the exercise of their judgment infer actual damages. (6) The court charges the jury that the *361plaintiffs are not required to prove the amount of actual damages they have sustained, but that, if you find from all the evidence that plaintiffs are entitled to recover, then it is the duty of the jury to take into consideration all the facts and circumstances proved, and if from all those facts and circumstances the jury find plaintiffs have suffered actual damages on account of the wrongful suing out of the writ of garnishment, then.the jury should consider such facts and circumstances proved, and assess such actual damages as they believe the plaintiffs have sustained by reason of the wrongful suing out of said garnishment.”

The following charges were given at the instance of the defendant: “(2) Unless you believe that Hoy sued .out the garnishment maliciously or vexatiously, you can not find punitive or exemplary damages. * * * (5) If you believe from the evidence in this case that C. D. Ritter and George Tribble were indebted to Hoy on January 26, 1910, and if you further believe from the evidence that said Hoy honestly believed that there was reasonable and probable cause for suing out the garnishment in question, then you can only find for the plaintiffs such actual damages as the evidence satisfied you they sustained. (6) If you believe that Hoy did not sue out the garnishment maliciously or vexatiously, you can only find for the plaintiffs such actual damages as they have shown you by the evidence that they have sustained, which would be interest on the money tied up, if you believe that any was tied up, for such length of time as it was tied up, and such damages, if any, to the plaintiff’s credit.”

Gaston & Pettits and O. D. Ritter, for appellant.

The plaintiff should have been allowed to show that hé had credit with the banks and others, and that he bore a *362good reputation in to *wn.*— Polloch *v. Gcvntt,*69 Ala. 373; *Mobile F. & G. Go. v. Little,*108 Ala. 445. Under the evidence plaintiff was clearly entitled to the affirmative *charge.'*— Mobile *F. & G. Go. v. Little, supra; Ala. State Laitcl Go. v. Reed,*99 Ala. 19. Vindictive damages may he recovered, where a garnishment is sued out maliciously or vexatiously, as was the case *here.*— Floyd *v. Hamilton,*33 Ala. 235; *Hayes v. Anderson,*57 Ala. 374. Counsel discuss other assignment of error, but without further citation of authority.

Wallace T. Ward, for appellee. No brief reached the Reporter.

WALKER, P. J.

The plaintiffs (appellants here) could not have been prejudiced by the action of the court in sustaining objections to questions propounded to the plaintiff Ritter as to whether or not at the time of the. suing out of the garnishment he was a practicing attorney in Birmingham, and as to what banks he had done business with up to that time, as the evidence sought to be elicited by each of those questions was subsequently admitted by the court. .

There was no error in sustaining the objection of the defendant to the question to the plaintiff Ritter as to whether or not his coplaintiff, Tribble, had been sued for debt prior to this action. The matter called for could have had no bearing on any issue in this case. It is suggested in argument that the inquiry was pertinent on the question of credit. We do not think so. The mere fact of one’s being sued on an alleged debt would have no legitimate tendency to prove that he owed such debt and was in default in its payment, and could not be regarded as a circumstance unfavorably affecting his credit. On the other hand, the fact that he had never *363been sued for a debt would have no tendency to prove that he had been indebted or that he enjoyed or was entitled to credit.

The bill of exceptions does not show that the plaintiffs interposed any objection to the question asked the plaintiff Ritter as to Mr. Hoy’s trying to collect the note. The statement is that the defendants objected to that question. The plaintiffs cannot complain of the overruling of an objection made by the defendants.

The ruling of the court on the motion of the defendants to exclude the answer of the witness Jaffe to the question in regard to the general credit of the plaintiff Ritter is not presented for review, as no exception was reserved to that ruling.

The expressed purpose of the questions asked the defendant Hoy on his cross-examination in reference to the consideration of the note sued on in the garnishment case was “to show that the amount for which the gar nishment was run was greater than the sum actually due at that time.” Instead of undertaking to show this by bringing out the facts, the questions asked in that connection were calculated to elicit the mere opinions or conclusions of the witness as to the amount then due. There was no error in sustaining the objections to those questions.

The bond sued on was given to secure the issuance of process of garnishment in a pending suit against the plaintiffs in this action, counting on a promissory note alleged to have been executed by them. Two banks in Birmingham' were named as the garnishees. The defendants in the suit gave bond, as authorized by the statute, and thereby effected the dissolution of the garnishments on the day of the issuance and service of the writs. Under the evidence it was a question for the jury whether or not the issuance and service of the writs *364entailed upon the plaintiffs any actual damage which was appreciable and susceptible of ascertainment and assessment. In the circumstances developed by the evidence it was not for the court to say that such was the fact. This being true, it was justified in refusing to give written charges 1, 2, and 3, requested by the plaintiffs, as each of those charges involved the assumption that the plaintiffs sustained actual damages.

Where an action is for actual damages which are uncertain or have not been admitted, the burden of establishing the amount thereof by evidence is upon the *plaintiff.*— Buist *v. Guice,*96 Ala. 255, 11 South. 280; *Hood v. Disston & Sons,*90 Ala. 377, 7 South. 732; 13 Cyc. 192. The statement of this proposition discloses a fault in each of the plaintiffs’ written charges numbered 4, 5, and 6, justifying the refusal of the court to give them.

It is suggested in argument that the court erred in giving written charges numbered 2, 5, and 6 requested by the defendants. Under the pleadings and evidence in the case, if it was found that the garnishment was not sued out maliciously or vexatiously, no basis was left for the assessment of punitive or exemplary damages. It follows that the plaintiffs could not have been prejudiced by the giving of charges 2 and 3 requested by the defendants. There was no evidence upon which to base an assessment of actual damages except that in reference to the tying up of money of the plaintiffs by the service of the writs and that bearing upon the effect upon the credit of the plaintiffs of the issuance and service of the writs. Such being the case, the giving of charge 6 did not constitute error prejudicial to the appellants.

What has been said disposes of all the assignments of error which are insisted on in argument.

Affirmed.