Hooker v. Chittenden

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLADD
Citation76 N.W. 706,106 Iowa 321
Decision Date13 October 1898
PartiesHOOKER v. CHITTENDEN.

106 Iowa 321
76 N.W. 706

HOOKER
v.
CHITTENDEN.

Supreme Court of Iowa.

Oct. 13, 1898.


Appeal from district court, Polk county; W. A. Spurrier, Judge.

Action to recover $1,500, being the proceeds of goods sold by defendant at retail, for which he was to account to plaintiff at fixed prices. The defendant denied the indebtedness, and, by way of counterclaim, asked to be allowed damages for the wrongful and malicious suing out of a writ of attachment. Trial to jury. Verdict and judgment for defendant. Plaintiff appeals. Reversed.

[76 N.W. 707]

Ayers, Woodin & Ayers, for appellant.

Read & Read, for appellee.


LADD, J.

The general verdict was for the defendant, and fixed the amount of his recovery at $100. In the special verdicts, the jury found by the fourth that the plaintiff was entitled to recover $1,500, as claimed in his petition; by the first, second, and third, that the writ of attachment was sued out wrongfully and maliciously; by the fifth, that the defendant suffered actual damages in the sum of $200; and, by the sixth, that he was entitled to $1,400 as exemplary damages. It will be observed that these findings are not inconsistent with the general verdict. Nevertheless, the plaintiff filed his motion, entitled “Motion in Arrest of Judgment,” in words following: “Now comes the plaintiff, and moves the court to set aside the general verdict of the jury in this case, and to render a judgment for the plaintiff, and against the defendant, on the fourth special finding or verdict of the jury, and to set aside the first, second, third, fifth, and sixth findings and special verdicts of the jury, for the following reasons.” Twenty-nine grounds appropriate for a motion of a new trial are then set out, none of which, if well founded, would authorize the court in sustaining this motion. No reasons are stated for rendering judgment, notwithstanding verdict, under sections 3757 and 3758 of the Code. It is somewhat difficult to determine the purpose of appellant in presenting such a motion to the court. He urges that it complies with the requirements of section 3755, which is in part: “A new trial is a re-examination in the same court of an issue of fact, or some part or portions thereof, after verdict by a jury, report of a referee, or a decision by the court. The former report, verdict, or decision, or some part or portion thereof, shall be vacated and a new trial granted, on the application of the party aggrieved, for the following causes affecting materially the substantial rights of such party.” It is very evident, without setting out the causes enumerated, that, in order to obtain a new trial, the aggrieved party must apply therefor. While the title of this motion is a misnomer, the plaintiff may well be presumed to have asked the relief he desired. A new trial is not included in his request. Indeed, it is absolutely inconsistent with the judgment he prays. In asking that the general verdict be set aside, and also five of the special interrogatories, he sought only what was necessary to accomplish before the relief prayed could be granted. The appellant explains his motion by saying a new trial was only desired on the counterclaim. If so, he was unfortunate in not making his wishes known to the court. The record is in a condition which precludes determining whether a new trial could have been granted on a part of the issues. See Bond v. Railway Co., 67 Iowa, 712, 25 N. W. 892;Woodward v. Horst, 10 Iowa, 120.

2. It is also urged that the motion was treated as a motion for new trial in the lower court. The mere fact that it was so designated in the judgment does not...

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4 practice notes
  • Amos v. Prom, Civ. No. 571.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 30, 1953
    ...Ahrens v. Fenton, 1908, 138 Iowa 559, 115 N.W. 233; Connelly v. White, 1904, 122 Iowa 391, 98 N.W. 144; Hooker v. Chittenden, 1898, 106 Iowa 321, 76 N.W. 706; Boardman v. Marshalltown Groc. Co., 1898, 105 Iowa 445, 75 N.W. 343; Union Mill Co. v. Prenzler, 1897, 100 Iowa 540, 69 N.W. 876, $5......
  • Stewart v. Equitable Mut. Life Ass'n of Waterloo
    • United States
    • United States State Supreme Court of Iowa
    • February 5, 1900
    ...which, without it, would not be called to its attention. Brown v. Rose, 55 Iowa, 735, 7 N. W. 133;Hooker v. Chittenden, 106 Iowa, 323, 76 N. W. 706; section 4105, Code. See Ankrum v. City of Marshalltown (Iowa) 75 N. W. 360. Surely, filing a motion of this kind does not waive errors to whic......
  • Jensen-Salsbery Labs., Inc. v. Ganoe (In re Larimer's Estate), No. 44526.
    • United States
    • United States State Supreme Court of Iowa
    • January 17, 1939
    ...this proposition are Brayton v. Boone, 19 Iowa 506; Hartman v. Red Ball Transportation Co., 211 Iowa 64, 233 N.W. 23;Hooker v. Chittenden, 106 Iowa 321, 76 N.W. 706. Finding no error in the case it is affirmed. Affirmed.The CHIEF JUSTICE and all the other Justices...
  • Cullison v. Lindsay
    • United States
    • United States State Supreme Court of Iowa
    • April 8, 1899
    ...by this motion defendants have waived their right to complain of any other errors. This is not the law. See Hooker v. Chittenden (Iowa) 76 N. W. 706;Pieart v. Railway Co., 82 Iowa, 148, 47 N. W. 1017. 4. The court took from the jury the following matters set up in the counterclaim: (1) That......
4 cases
  • Amos v. Prom, Civ. No. 571.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 30, 1953
    ...Ahrens v. Fenton, 1908, 138 Iowa 559, 115 N.W. 233; Connelly v. White, 1904, 122 Iowa 391, 98 N.W. 144; Hooker v. Chittenden, 1898, 106 Iowa 321, 76 N.W. 706; Boardman v. Marshalltown Groc. Co., 1898, 105 Iowa 445, 75 N.W. 343; Union Mill Co. v. Prenzler, 1897, 100 Iowa 540, 69 N.W. 876, $5......
  • Stewart v. Equitable Mut. Life Ass'n of Waterloo
    • United States
    • United States State Supreme Court of Iowa
    • February 5, 1900
    ...which, without it, would not be called to its attention. Brown v. Rose, 55 Iowa, 735, 7 N. W. 133;Hooker v. Chittenden, 106 Iowa, 323, 76 N. W. 706; section 4105, Code. See Ankrum v. City of Marshalltown (Iowa) 75 N. W. 360. Surely, filing a motion of this kind does not waive errors to whic......
  • Jensen-Salsbery Labs., Inc. v. Ganoe (In re Larimer's Estate), No. 44526.
    • United States
    • United States State Supreme Court of Iowa
    • January 17, 1939
    ...this proposition are Brayton v. Boone, 19 Iowa 506; Hartman v. Red Ball Transportation Co., 211 Iowa 64, 233 N.W. 23;Hooker v. Chittenden, 106 Iowa 321, 76 N.W. 706. Finding no error in the case it is affirmed. Affirmed.The CHIEF JUSTICE and all the other Justices...
  • Cullison v. Lindsay
    • United States
    • United States State Supreme Court of Iowa
    • April 8, 1899
    ...by this motion defendants have waived their right to complain of any other errors. This is not the law. See Hooker v. Chittenden (Iowa) 76 N. W. 706;Pieart v. Railway Co., 82 Iowa, 148, 47 N. W. 1017. 4. The court took from the jury the following matters set up in the counterclaim: (1) That......

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