Court of Appeals of Kentucky.
Jan. 27, 1897.
ACTION: Affirmed.

Appeal from circuit court, Knox county.

"Not to be officially reported."

Action by E. C. Smith against T. S. Wilson to recover damages for wrongful attachment. Judgment for plaintiff, and defendant appeals.

The appellee, Smith, recovered a judgment in the Knox circuit court against the appellant for $180, with interest and costs; and, appellant's motion for a new trial having been overruled, he prosecutes this appeal.

The suit was to recover damages for the wrongful suing out of an attachment by the appellant. It is insisted by appellant that the petition was insufficient, and did not authorize the evidence to be admitted that was admitted, nor authorize the court to give the instruction which was given; it being nowhere specifically alleged in the petition what attorney fee had been paid, or agreed to be paid, for defending the attachment. It may be that the petition, as to that claim, was defective; but the defect, if any, was cured by the answer, verdict, and judgment. The court should have confined the plaintiff to proof of the attorney fees paid or promised for the defense of the attachment, and should have so instructed the jury. It is, however, by no means certain that the instruction given was not intended to restrict appellee's recovery for attorney fees to the amount paid or to be paid for defending the attachment. The evidence conduced to show that the attached property was worth $200, or near that amount. The jury allowed $120, with interest from 21st August, 1884, and $60 attorney fee. It may be that the proof was hardly sufficient to authorize the $60 for attorney fee, but it would have authorized a much larger verdict for the attached property. It seems to us that no error to the prejudice of the substantial rights of the appellant occurred on the trial.

The court properly refused to allow the amended answer to be filed. It did not show that any objection was made at the time to the special judge, and appellant prosecuted an appeal from the judgment, and the same was affirmed; hence he could not be heard, in this case, to impeach or attack the judgment rendered by the special judge in the suit of Wilson v. Smith, etc.

The judgment appealed from is affirmed, with damages.

Ky.App. 1897.


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