Ames v. Chirurg

Decision Date27 September 1911
PartiesAMES v. CHIRURG ET AL.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Kossuth County; D. F. Coyle, Judge.

Action upon an attachment bond for the wrongful suing out of a writ of attachment. Directed verdict for defendants, and plaintiff appeals. Affirmed.Harrington & Dickinson and Kelleher & O'Connor, for appellant.

Sullivan & McMahon and E. A. & W. H. Morling, for appellees.

DEEMER, J.

Defendant Chirurg brought action against the plaintiff for an accounting, etc., and, alleging that defendant in the action was a nonresident of the state, she (defendant) secured a writ of attachment to issue, which was levied upon certain real estate belonging to plaintiff herein. Various of her debtors were garnished, as also was her agent living in Iowa. The nature of the main action, or one of a series of actions, will be seen in a case which heretofore reached this court, entitled Chirurg v. Ames, 138 Iowa, 697, 116 N. W. 865. Suffice it now to say that plaintiff in that action claimed that defendant, plaintiff in this suit, held title to the real estate attached, or some of it, in trust; that she was the equitable owner thereof. She also asked an accounting from the defendant, and further claimed to be entitled to the sum of $1,800 as rent for some Boston property which Mrs. Chirurg claimed to own. In this original action plaintiff herein filed a general denial and also pleaded a counterclaim for several hundred dollars. It should be said that the attachment was not sued out until some time after the original action was commenced, and after plaintiff herein had employed attorneys to defend the suit and look after her interests. No counterclaim was filed for damages growing out of the attachment in the main action. The Title Guaranty & Trust Company of Scranton, Pa., signed the attachment bond as a surety, and it is made a defendant with Mrs. Chirurg. As already stated, this action is upon the attachment bond, and not for malicious prosecution, and the case was tried and submitted to the lower court as an action upon the bond. It must therefore be so treated here. No claim is made that the ground for attachment, to wit, the nonresidence of the attachment defendant, was not true when made. The action is predicated upon the proposition that defendant in that action was not indebted to the plaintiff therein, and for this reason that the attachment was wrongful, and defendant in the attachment is entitled to recover damages because of the levy upon her property and the garnishment of her debtors. Her principal, if not her only, claim for damages is attorney's fees paid out and expenses incurred in defending the main suit. Some claim is made of damages to the real estate and of loss sustained by reason of the withholding of certain rents from plaintiff herein for the land attached; and claim is also made because certain money due plaintiff herein was withheld from her by reason of the garnishments, but the chief items are for attorney's fees and expenses.

The main action was tried and Mrs. Chirurg's petition was dismissed, and Mrs. Ames' counterclaim was also disallowed. This was, of course, a conclusive finding that nothing was due the attachment plaintiff when the attachment suit was commenced. The attorney's fees claimed, as well as expenses incurred, were for defending the main action, and not for securing the release of the attachmentand the garnishments, for the statutory grounds for the attachment were true, as alleged. The attachment, if wrongful, was because there was no debt due from the attachment defendant, and the main question here is, May an attachment defendant in such cases, in an action on the bond, recover such items? This is not an action for malicious prosecution, but is upon a bond conditioned as follows: “Whereas the said Martha M. Chirurg is about suing out of the office of the clerk of the district court in and for said county, a writ of attachment against the property of the said Abbie S. Ames in the sum of three thousand, three hundred thirty-three ($3,333.00) dollars in a certain action against the said Abbie S. Ames for said sum: Now if the said Martha M. Chirurg shall pay all damages which the said Abbie S. Ames may sustain by reason of the unlawful suing out of said writ, then this obligation to be void, otherwise to remain in full force.”

The statute of the state with reference to such actions reads as follows: “In an action on such bond, the plaintiff therein may recover, if he shows that the attachment was wrongfully sued out, and that there was no reasonable cause to believe the ground upon which the same was issued to be true, the actual damages sustained, and reasonable attorney's fees to be fixed by the court; and if it be shown such attachment was sued out maliciously, he may recover exemplary damages, nor need he wait until the principal suit is determined before suing on the bond.” Code, § 3887.

Other statutes relating more or less to this subject are as follows: “If it be subsequent to the commencement of the action, a separate petition must be filed, and in all cases the proceedings relative to the attachment are to be deemed independent of the ordinary proceedings and only auxiliary thereto.” Code, § 3877. “If the plaintiff's demand is founded on contract, the petition must state that something is due, and, as nearly as practicable, the amount which must be more than five dollars in order to authorize an attachment.” Code, § 3880. “If the demand is not founded on contract, the original petition must be presented to some judge of the supreme, district or superior court, who shall make an allowance thereon of the amount in value of the property that may be attached.” Code, § 3882. “The fact stated as a cause of attachment, shall not be contested in the action by a mere defense. The defendant's remedy shall be on the bond, but he may in his discretion sue thereon by way of counterclaim, and in such cases shall recover damages as in an original action on such bond.” Code, § 3888.

Neither the Code of 1851 nor the Revision of 1860 contained this provision now found in section 3887 of the present Code: “And that there was no reasonable cause to believe the ground upon which the same was issued to be true.” This clause was first introduced into the Code of 1873, and decisions under prior Codes are of no consequence in solving the proposition here presented, unless it be, as appellant contends, that this proviso is simply declarative of the law as it theretofore existed. But, as pointed out in Dickinson v. Athey, 96 Iowa, 363, 65 N. W. 326, this is not true. In that case the change in the statute was noted, and comment made thereon. Indeed, we think there can be no room for doubt upon this proposition. We may then eliminate all decisions rendered prior to the adoption of the Code of 1873. Before taking up the question as to the recovery of attorney's fees and expenses, we shall first determine whether any damages are shown to have been suffered because of the attachment of the real estate and the running of the garnishments.

[1] Plaintiff did not lose possession of the attached land, nor was her dominion thereover in any manner interfered with. She lost no opportunity to sell, and the lease for the land was in the hands of her agent, Vaughn, who was garnished as a debtor. She lost none of the rents, nor, so far as shown, was she deprived of any interest therein. No damage resulted from the levy on the real estate. New Sharon Co. v. Knowlton, 132 Iowa, 672, 108 N. W. 770;Fullerton Lumber Co. v. Spencer, 81 Iowa, 549, 46 N. W. 1058;King v. Kehoe, 91 Iowa, 91, 58 N. W. 1071;Emerson v. Converse, 106 Iowa, 330, 76 N. W. 705. As to the garnishment notice thereof was served upon plaintiff's agent, Vaughn, who held the lease of her lands and also some notes belonging to her. No damage is shown to have resulted to plaintiff by reason of this garnishment. Notice of garnishment was also served upon the maker of one of the notes in the hands of the agent, Vaughn, but no damage is shown to have resulted therefrom. The note drew interest, which plaintiff finally received. Vaughn proceeded to collect money for plaintiff after the garnishment, as he had a right to do, and by agreement he used nearly the entire amount so collected in the payment of an installment of interest on a loan secured by mortgage upon the farm. This money was received in September of the year 1906, and was paid out by agreement in January of the year 1907. Under present statutes (Code, §§ 3935, 3939, 3946, and 3987), which are too long to be quoted, a garnishee is not held now for money coming into his hands after the garnishment is run. See, also, Morris v. Union Pacific R. R., 56 Iowa, 135, 8 N. W. 804;Thomas v. Gibbons, 61 Iowa, 50, 15 N. W. 593. The statutes referred to have materially modified the law as it appeared in the Code of 1873. Compare these sections with 2975 and 2988 of the Code of 1873. No damages resulted to plaintiff herein from the garnishments. See cases hereto cited and Britson v. Tjernagel, 90 Iowa, 356, 57 N. W. 872, and Tisdale v. Major, 106 Iowa, 1, 75 N. W. 663, 68 Am. St. Rep. 263.

[2] 2. We come now to the more perplexing question of the right to recover attorney's fees and expenses in an action such as this, which is on the attachment bond. We have recently held that in such actions, if there be a right of recovery upon the bond at all, attorney's fees for securing the release of the attached property may be recovered, and that the court may also tax a fee for prosecuting the action on the bond, whether that action be by counterclaim in the main action, or an independent suit upon the bond. See Peters v. Snavely-Ashton, 144 Iowa, 147, 120 N. W. 1048, 122 N. W. 836. But even in such cases it has been doubted whether attorney's fees may be recovered for defending the main action, to which the attachment was simply auxiliary. Insell v....

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4 cases
  • Long v. Burley State Bank
    • United States
    • Idaho Supreme Court
    • May 3, 1917
    ...but both these elements must be present. However, malice may be inferred by the jury, from the lack of probable cause (Ames v. Chirurg, 152 Iowa 278, 132 N.W. 427, 38 R. A., N. S., 120; note to Tisdale v. Major, supra), but the jury cannot infer want of probable cause from the mere fact tha......
  • Ames v. Chirurg
    • United States
    • Iowa Supreme Court
    • September 27, 1911
  • Thielen v. Schechinger
    • United States
    • Iowa Supreme Court
    • December 9, 1930
    ... ... Under ... such circumstances, no other damage being shown, there can be ... no recovery of actual damages. See Ames v. Chirurg, ... 152 Iowa 278; New Sharon Cream. Co. v. Knowlton, 132 ... Iowa 672, 108 N.W. 770; Braland v. Christenson ... (Iowa), 171 N.W. 22 ... ...
  • Thielen v. Schechinger
    • United States
    • Iowa Supreme Court
    • December 9, 1930
    ...Under such circumstances, no other damage being shown, there can be no recovery of actual damages. See Ames v. Chirurg, 152 Iowa, 278, 132 N. W. 427, 38 L. R. A. (N. S.) 120;New Sharon Creamery Co. v. Knowlton, 132 Iowa, 672, 108 N. W. 770;Braland v. Christenson (Iowa) 171 N. W. 22;Armentro......

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