Dickinson v. Athey
| Decision Date | 12 December 1895 |
| Citation | 65 N.W. 326,96 Iowa 363 |
| Parties | DICKINSON & BARTLETT, Appellants, v. E. P. ATHEY |
| Court | Iowa Supreme Court |
Appeal from Keokuk District Court.--HON. HENRY BANK, JR., Judge.
Action at law, aided by attachment, upon an open account for goods sold and delivered. The defendant, in answer, denied the plaintiff's account, and further pleaded that both plaintiffs and defendant were residents of the state of Illinois, and that the plaintiffs by false and fraudulent representations, and other deceitful practices, induced defendant to come into this state for the purpose of securing service of notice on him here, in order to avoid the exemption laws of the state of Illinois; and he avers that the court has no jurisdiction over him. He also pleaded a counterclaim upon the attachment bond given by the plaintiffs, based upon the alleged wrongful suing out of the writ of attachment. The case was tried to a jury, which found there was due the plaintiffs the sum of five hundred and sixty-six dollars and thirty-two cents on their claim, and that defendant should be allowed the sum of six hundred and sixty-eight dollars and fifty cents on his counterclaim. The verdict, in so far as it allowed the defendant damages, was afterward set aside by the court, and a judgment was rendered in favor of the plaintiffs for the amount of the verdict found in their favor. Thereafter the cause was retried on the defendant's counterclaim, and on the second trial the jury found a verdict for him and fixed the amount of his damages at the sum of forty-one dollars and ninety-three cents. It also specially found that the attachment was wrongfully and maliciously sued out. Thereupon the defendant moved the court to allow and fix the fees to be awarded his attorneys for their services in the case. On this motion certain testimony was taken, and, after hearing all the evidence, the court allowed the defendant the sum of one hundred and seventy-five dollars as compensation for his attorneys, which amount was taxed as a part of the costs in the judgment rendered on the counterclaim. The plaintiffs excepted to the order allowing attorney's fees and appeal.
Reversed.
James H. Anderson and James C. Davis for appellants.
Truman Plantz and Gibson Browne for appellee.
The sole question presented by this appeal is whether the court was in error in assessing as against the plaintiffs the attorney's fees allowed by him. It would seem that the controversy is settled by our statute (Code, section 2961) which 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 attorneys' fees to be fixed by the court. * * *" The counterclaim was upon the bond, but it did not controvert the statement made as a ground for the attachment "that the defendant was a nonresident of the state." That the defendant was a nonresident was expressly conceded. The cause of action was bottomed solely on the thought that the attachment was wrongful because of the conduct of plaintiffs in fraudulently inducing the defendant to enter this state in order that service of notice might be had upon him here. The statute we have quoted authorizes the court to fix attorney's fees when the attachment was wrongfully sued out, and the plaintiff had no reasonable cause to believe the ground upon which the same was issued to be true. Unless both of these matters are shown, there seems to be no authority in the court to fix attorney's fees. It is claimed, however, by counsel for appellee, that we have approved the allowance of attorneys' fees in all cases where it was found that the attachment was wrongfully sued out without reference to the question as to whether the grounds stated to procure the same were true or not; and the case of Whitney v. Brownewell, 71 Iowa 251 (32 N.W 285), is relied upon. An examination of that case will show that the question here presented was in no manner involved. The only question there considered was whether the defendants were entitled to an allowance of attorneys' fees for defending the whole case. Lyman v....
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