Boggan v. Bennett

102 Ala. 400

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

STONE, C. J.

The circuit court erred in receiving testimony of the value of attorney’s fees paid or incurred in asserting Bennett’s exemptions, and in allowing proof to be made of the expense of hauling the goods back home. These were in their nature special damages, and to authorize proof to be made of them, they should have been specially claimed in the complaint. — Ala. Gr. So. R. R. Co. v. Tapia, 94 Ala. 226; 10 So. Rep. 236; Ross v. Malone, 97 Ala. 529, 12 So. Rep. 182.

■ We cannot apply the doctrine of error without injury to this case, for the following, if for no other reason : Although there was testimony tending to show the goods were damaged to a greater amount than the plaintiff recovered, there was testimony, also, tending to show the •damage was very slight. We can not know by what testimony the finding of the facts was controlled.

We hold, too, that if the papers in the attachment suit had been offered, they should have been received, together with testimony that the seizure was made under them. They were offered simply in mitigation of the trespass, and not in justification of the seizure. Offered for this •purpose, it was neither necessary nor proper that a plea should have been interposed. Oral proof of them, without their production, was inadmissible.

Reversed and remanded.