Cawker City State Bank v. Jennings

• Decision Date: 12 October 1893
• Citation: 56 N.W. 494,89 Iowa 230
• Parties: CAWKER CITY STATE BANK v. JENNINGS, (JENNINGS, INTERVENER.)
• Court: Iowa Supreme Court

89 Iowa 230

56 N.W. 494

CAWKER CITY STATE BANK

v.JENNINGS, (JENNINGS, INTERVENER.)

Supreme Court of Iowa.

Oct. 12, 1893.

Appeal from district court, Harrison county; George W. Wakefield, Judge.

June 15, 1891, plaintiff commenced this action to recover of defendant $2,000 and interest upon a promissory note for that amount, dated December 4, 1890. Plaintiff also sued out an attachment, alleging as ground therefor that defendant was a nonresident of the state of Iowa. Defendant answered under oath, denying that he signed or authorized the signing of his signature to said note, and asking by way of counterclaim to recover damages for the wrongful suing out of said attachment. Thereupon plaintiff amended the petition by adding a second count, asking to recover on account for money advanced and loaned to defendant, with interest, amounting to $2,000, and alleging that said count was for the same cause of action set out in the original petition. Defendant filed his amended and substituted answer, denying the execution of the note, and that he was indebted to the plaintiff on the account. He asked by way of counterclaim damages on the attachment bond, for a wrongful suing out and levy of the attachment. He also asked, as counterclaim to the cause of action set up in said second count of the petition, damages for an alleged malicious prosecution for selling and concealing mortgaged property. Plaintiff's demurrer was sustained to this last-mentioned counterclaim. Defendant moved that plaintiff be required to elect upon which count of the petition it would proceed to trial, which motion was overruled. Thereupon the case was tried to a jury upon the issues joined, and verdict returned in favor of the plaintiff on the second count for $1,986.50. Special findings were also returned, showing that the jury found for the plaintiff on said second count, and finding that defendant was not a resident of this state when the attachment was sued out, that it was not wrongfully sued out, and that defendant was not entitled to damages on his counterclaim for a wrongful suing out of the attachment. While the action was pending, the attached property was sold as perishable, and the proceeds held to await the result of the litigation. After verdict, and before judgment, Anna Jennings intervened, claiming the proceeds of the sale under a bill of sale from defendant, made September 15, 1891. Plaintiff's motion to dismiss the petition of intervention was sustained, and defendant's motion for a new trial overruled. Judgment was entered for plaintiff on the verdict, and that the proceeds of the sale of the attached property be applied thereon, and that any surplus be paid to intervener. Defendant and intervener appeal.E. Duffy and S. H. Cochran, for appellants.

D. M. Thorpe and H. H. Roadifer, for appellee.

GIVEN, J.

1. The attachment in this case was issued upon plaintiff declaring that defendant was indebted as charged in the first count of the petition. The sole issue joined on that count was whether defendant executed the promissory note therein declared upon. If he did, he was indebted in the amount evidenced by the note; if he did not, plaintiff was not entitled to recover on that count. Plaintiff was not entitled to an attachment unless there were more than five dollars due on its demand. Code, § 2953. The jury found against the plaintiff on the first count, or, in other words, failed to find that there was anything due to the plaintiff on its demand as stated in said first count. If this was all that appeared in the record, it would be clear that the attachment was wrongfully sued out. We have seen, however, that after the attachment was sued out and levied, and after defendant had denied that he executed the note, plaintiff amended, setting up the same cause of action in a second count in the form of an account for money advanced and loaned subsequent to October 11, 1890, which was due and unpaid at the time this action was commenced, and recovered thereon.

Several of the errors assigned by appellants rest upon the claim that the plaintiff's right to an attachment depended upon its being entitled to recover upon the first count; that the second count presented a new and different cause of action, and therefore was subject to be offset by defendant's counterclaim for damages for malicious prosecution, to which the demurrer was sustained. The omission of sections 2934 and 2936 of the Revision from the Code of 1873 remits parties to the common-law rule allowing the same cause of action to be pleaded in different counts. Pearson v. Railroad Co., 45 Iowa, 498. The plaintiff expressly states in the second count that it is for the same cause of action stated in the first. The reason for the amendment is shown by the uncontradicted evidence that plaintiff prepared the note to cover what is claimed on the account, sent it to the defendant by mail for execution, and received it back by mail, purporting to be duly signed. Defendant denied under oath that he had signed or authorized the signing of his name; and plaintiff, having no witness to the signing, amended, setting up the account which formed the consideration for the note, alleging that it was due at the commencement of the action, and asking to recover on one or the...