Emerson v. Converse

• Decision Date: 13 October 1898
• Citation: 76 N.W. 705,106 Iowa 330
• Parties: EMERSON ET AL. v. CONVERSE.
• Court: Iowa Supreme Court

106 Iowa 330

76 N.W. 705

EMERSON ET AL.

v.CONVERSE.

Supreme Court of Iowa.

Oct. 13, 1898.

Appeal from district court, Polk county; Thomas F. Stevenson, Judge.

Action, aided by attachment, upon two promissory notes. The defense was part payment, and there was a counterclaim for damages upon the attachment bond. Trial to jury. Verdict and judgment for defendant. Plaintiff appeals. Reversed.Bailey & Ballreich, for appellant.

C. C. & C. L. Nourse, for appellee.

WATERMAN, J.

The ground for attachment, as stated in the original petition, which was filed on the 17th day of February, 1894, was that “defendant is about to dispose of his property with intent to defraud his creditors.” The answer and counterclaim were filed September 20, 1895. On March 11, 1896, the cause was called for trial. After the jury was impaneled, plaintiff filed an amendment to his petition, in which, as an additional ground for attachment, he alleged “that the debt sued on herein is for property obtained under false pretenses.” A motion to strike this amendment from the files was sustained, and this action of the court is the ground of the first assignment of error. It is urged in support of the court's ruling that section 3021 of the Code of 1873, which provides for the amendment of the petition, affidavit, or writ in attachment proceedings, does not authorize an amendment which sets up a new ground of attachment. We held otherwise in Bank v. Converse (Iowa) 75 N. W. 506. The amendment being proper in substance, we have only to consider whether the court abused its discretion in refusing to permit it to stand as a pleading in the case. Section 2689 of the Code of 1873 is as follows: “The court may on motion of either party at any time in furtherance of justice, and on such terms as may be proper, permit such party to amend any pleadings or proceedings by adding or striking out the name of a party or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by confirming the pleadings or proceedings to the facts proved.”Under this section we have held that the rule is to permit amendments; to refuse them, the exception. Hinkle v. Davenport, 38 Iowa, 355;Pride v. Wormwood, 27 Iowa, 257. We have also held that the matter of allowing amendments is within the sound discretion of the trial court. Brockman v. Berryhill, 16 Iowa, 183;Hays v. Turner, 23 Iowa, 214;Phillips v. Van Schaick, 37 Iowa, 229. Coming, as this amendment did, after the trial had begun, we cannot say that it was any abuse of the court's discretion to disallow it. No good reason is given why this matter was not set up at an earlier date. While great liberality should be shown by the courts in the allowance of amendments that are in furtherance of justice, the right is not absolute, and attorneys should not be encouraged to wait until the last moment before presenting their cases. There was no error in sustaining the motion to strike. Brewing Co. v. Armstrong, 89 Iowa, 673, 57 N. W. 436.

2. It is next urged that the testimony does not show that the writ was wrongfully sued out. Upon this point, as may well be conceived, there is a conflict. We are not able to say that the finding of the jury is without substantial support.

3. The rule of damages, as given in the court's instructions, is next complained of by appellant. The particular instruction objected to is as follows: “If you find that the defendant is entitled to recover upon his counterclaim on the bond sued on, then your next inquiry should be as to the amount of his recovery. On this question you are instructed that under the undisputed evidence, at the time of the levy of the attachment of the plaintiffs on the said stock of goods,...