Jones v. Van Donselaar

• Decision Date: 25 June 1925
• Docket Number: 36941
• Citation: 204 N.W. 416,200 Iowa 176
• Parties: NORRIS H. JONES et al., Appellants, v. ELLA VAN DONSELAAR et al., Appellees
• Court: Iowa Supreme Court

204 N.W. 416

200 Iowa 176

NORRIS H. JONES et al., Appellants, v. ELLA VAN DONSELAAR et al., Appellees

No. 36941

Supreme Court of Iowa, Des Moines

June 25, 1925

Appeal from Woodbury District Court.--MILES W. NEWBY, Judge.

ACTION upon an attachment bond, to recover damages for the alleged wrongful and malicious suing out of a writ of attachment. A verdict returned by the jury in plaintiffs' favor was set aside by the court upon a motion for a new trial, and they appeal.

Affirmed.

Forest W. Hanna, Edward E. Wagner, and Robert B. Pike, for appellants.

Jepson Struble, Anderson & Sifford, for Maryland Casualty Company appellee.

STEVENS J. FAVILLE, C. J., and ARTHUR and ALBERT, JJ., concur.

OPINION

STEVENS, J.

This is an action upon an attachment bond, to recover actual and punitive damages for the wrongful and malicious suing out and levying of a writ of attachment. Plaintiffs and the Van Donselaars are nonresidents of this state. The bond was executed by the Maryland Casualty Company as surety at Sioux City, Iowa. The original notice was served upon it alone, and the Van Donselaars are not parties to this appeal.

On March 15, 1921, the Van Donselaars instituted an action in the district court of Woodbury County against appellants, claiming damages in the sum of $ 10,000 on account of False and fraudulent representations alleged to have been made in the sale of a certain tract of land situated in Lyman County, South Dakota. Jurisdiction was obtained in that action by the attachment of a sum of money belonging to the Joneses, in the possession of a bank in Sioux City. Issues were joined in the original action, and a trial commenced. At the close of the plaintiffs' testimony, and upon the motion of the defendants, the trial court abated the action for want of jurisdiction, on the ground that the defendants, were induced by the fraud and trickery of the plaintiffs to send their property into this state. Plaintiffs appealed from this ruling by the trial court, but it was affirmed. See Van Donselaar v. Jones, 195 Iowa 1081, 192 N.W. 22, where the facts are fully stated. Thereupon the defendants in that action, appellants herein, instituted suit upon the attachment bond, to recover damages. A trial resulted in a verdict in their favor against the surety company for $ 8,504.96. Upon motion of the defendant, appellee herein, this verdict was set aside, and a new trial granted. A second trial was had, which resulted in another verdict for the plaintiffs,--this time in the sum of $ 9,924.60. This verdict was also set aside, upon the motion of the defendant for a new trial. Hence this appeal.

The ground upon which the motion for a new trial was sustained in both instances was the passion and prejudice of the jury. The court, upon the latter trial, in sustaining the motion, specifically overruled all other grounds stated therein, with the result that both parties have appealed. The appeal of plaintiffs having been first taken, we shall denominate them the appellants.

There is no substantial difference in the views of counsel as to the law of the case. It is conceded that the ground stated in the petition for an attachment, which was that the defendants therein were nonresidents of the state of Iowa, is true. It was, therefore, necessary for appellants to allege and prove that the plaintiffs in the attachment suit had neither cause of action against them nor reasonable cause to believe that the allegations of their petition were true. Counsel for appellants charge error in the court's ruling sustaining the motion for a new trial, upon the ground that the court in so ruling abused its discretion. On the other hand, counsel for appellee maintain that the verdict was so clearly the result of passion and prejudice on the part of the jury that it was the duty of the court to set aside the verdict and to grant a new trial; and set forth, as a further ground, that appellants offered no testimony to sustain the allegations of their petition that the attachment was willfully and maliciously sued out, and without probable cause.

The jury, in answer to special interrogatories submitted by the court, found actual damages in the sum of $ 3,409.56 and exemplary damages in the sum of $ 6,515.04. The actual damages allowed were itemized in appellants' petition and consisted of $ 572 interest on the money attached, $ 2,150 attorney fees expended in securing the abatement of the attachment, and other expenses incurred in the progress of the litigation. The method by which the jury arrived at the sum allowed as exemplary damages is not disclosed. The amount for which...