Britson v. Tjernagel

• Decision Date: 05 February 1894
• Citation: 57 N.W. 872,90 Iowa 356
• Parties: L. A. BRITSON v. L. J. TJERNAGEL, JOHN SWAN AND THE CITY NATIONAL BANK, Appellants
• Court: Iowa Supreme Court

57 N.W. 872

90 Iowa 356

L. A. BRITSON v. L. J. TJERNAGEL, JOHN SWAN AND THE CITY NATIONAL BANK, Appellants

Supreme Court of Iowa, Des Moines

February 5, 1894

Appeal from Story District Court.--HON. S. M. WEAVER, Judge.

ACTION at law to recover the sum of two hundred dollars which plaintiff alleged he deposited with the defendant bank. The defendants denied that the alleged deposit was made. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendants appeal.

Affirmed.

J. F Martin for appellants.

Funson & Gifford for appellee.

OPINION

ROTHROCK, J.

I.

The Citizen's Bank, defendant, is located at Story City, and is owned by the defendants Tjernagel and Swan. In 1891 the plaintiff was engaged in the hardware business at a village named Roland, a few miles from Story City, and he did his banking business with said bank. He claims that he delivered to the defendant Tjernagel the sum of two hundred dollars in currency, at Roland, to be deposited in the bank, and that he received no credit for said money. There is no question made as to the sufficiency of the evidence to authorize a verdict for plaintiff.

II. When the plaintiff commenced the action he sued out a writ of attachment on the ground that the defendant Tjernagel was about to remove permanently out of the county, and had property not exempt from execution, which he refused to apply to the payment or securing of the debt due to the plaintiff and that he was about to convert his property into money for the purpose of placing it beyond the reach of his creditors. The attachment was levied upon eighty acres of land. The defendant Tjernagel filed a counterclaim, in which he demanded damages of the plaintiff for wrongfully suing out the attachment. The counterclaim did not deny the grounds of the attachment set out in the petition. It was based upon the ground that the attachment was wrongfully sued out, because there was no indebtedness due from the defendants to the plaintiff. When the case was submitted to the jury the court withdrew the counterclaim from the consideration of the jury. It is claimed this action of the court was erroneous. We think the ruling of the court was correct upon the ground that there was no competent evidence of any damages by reason of the attachment. There was no evidence that the defendant was in any way damaged by the levy of the attachment upon his land.

III. The defendants filed affidavits which tended...