Citizens' National Bank of Des Moines v. Converse

• Decision Date: 23 May 1898
• Citation: 75 N.W. 506,105 Iowa 669
• Parties: CITIZENS NATIONAL BANK OF DES MOINES, IOWA, v. GEORGE E. CONVERSE, Appellant
• Court: Iowa Supreme Court

75 N.W. 506

105 Iowa 669

CITIZENS NATIONAL BANK OF DES MOINES, IOWA, v. GEORGE E. CONVERSE, Appellant

Supreme Court of Iowa, Des Moines

May 23, 1898

Appeal from Polk District Court.--HON. W. F. CONRAD, Judge.

ACTION at law upon five promissory notes. A writ of attachment was issued, and levied upon a stock of goods belonging to the defendant. Thereafter, a receiver was appointed, and the goods were sold by order of court. Defendant admitted the execution of the notes, and pleaded a counterclaim for the wrongful suing out of the attachment. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

C. C. & C. L. Nourse for appellant.

W. E Odell for appellee.

OPINION

DEEMER, C. J.

After the writ had been sued out, plaintiff filed an amendment to its petition, in which it alleged, as an additional ground for an attachment, "that the debt was incurred for property obtained under false pretenses." It further alleged that this ground existed at the time the original petition was filed, but that it was not informed of the fact until after the levy of the writ. Defendant moved to strike this amendment, but his motion was overruled. The court instructed the jury that, if this ground for attachment actually existed at the time the writ was sued out, then it was not wrongful, and further said that, if the jury found that this ground did not exist, then they need not consider whether plaintiff had reasonable ground to believe it to be true, for the reason that plaintiff did not know when it sued out the attachment whether it was true or not. Complaint is made of the ruling and of the instruction. Section 3021 of the Code of 1873 is as follows: "This chapter shall be liberally construed, and the plaintiff at any time when objection is made thereto, shall be permitted to amend any defect in the petition, affidavit, bond, writ or other proceeding; and no attachment shall be quashed dismissed, or the property attached released, if the defect in any of the proceedings has been, or can be amended so as to show that a legal cause for the attachment existed at the time it was issued; and the court shall give the plaintiff a reasonable time to perfect such defective proceedings; the causes of attachment shall not be stated in the alternative." We think this section is broad enough to authorize the procedure in this case. It permits the amendment of the petition to show that legal cause for the attachment existed at the time the writ was issued. This is exactly what was done by the plaintiff. In the case of Griffith v. Harvester Co., 92 Iowa 634, 61 N.W. 243 we said: "One of the evident purposes of this section is to prevent the loss to the plaintiff, by reason of defects in the proceedings which he is able and willing to cure, of the benefits he would derive from the attachment, and to give him a reasonable opportunity to make the correction." The cases of Wadsworth v. Cheeny, 10 Iowa 257, and Bundy v. McKee, 29 Iowa 253, seem to fully justify the ruling on the motion. The instruction to which we have referred was undoubtedly correct. Vorse v. Phillips, 37 Iowa 428. But it is said that, taken in connection with other instructions relating to reasonable ground for belief of the matters stated as grounds for attachment, it was misleading and confusing. The other instructions stated rules applicable to such counterclaims, in the ordinary and usual manner, and made the question of plaintiff's belief in the truth of the ground for attachment set up in the amendment a material inquiry. After the jury had retired, they asked for further instructions; and the court gave the one to which we first called attention, premising it with the statement that this ground for attachment was set up, by way of amendment to the petition, after the attachment was issued, and then stated that, if they failed to find it was true, then they need not consider whether or not plaintiff had reasonable ground to believe it to be true. The error, if any, in the original instructions, was covered by the additional charge; and, when all are considered together, there is no reason for thinking that the jury was misled thereby.

II. Plaintiff was permitted to introduce in evidence the written bids made to the receiver for the goods levied upon under the attachment, and the report of the receiver with reference to the sale. This is said to be...