King v. Kehoe

Citation58 N.W. 1071,91 Iowa 91
PartiesDANIEL KING, Appellant, v. NICHOLAS KEHOE et al
Decision Date16 May 1894
CourtUnited States State Supreme Court of Iowa

May 1 1894.

Appeal from Delaware District Court.--HON. FRED O'DONNELL Judge.

ACTION upon an attachment bond, executed by defendants Nicholas Kehoe, as principal, and Michael Hogan and Patrick Kehoe as sureties, "to M. M. Carville and Daniel King." Defendants Michael Hogan and Patrick Kehoe demurred to the petition, and, the demurrer being sustained, plaintiff excepted, and elected to stand upon his petition, whereupon judgment was entered against him, from which judgment he appeals. Affirmed.

AFFIRMED.

Chas Husted and J. H. Peters for appellant.

M. W. Herrick for appellees.

OPINION

GIVEN, J.

I.

The grounds of the demurrer are that the petition does not state a cause of action, and shows that there is a defect of parties plaintiff. The petition shows that the bond sued upon was executed by defendants in an action brought by defendant Nicholas Kehoe against this plaintiff and said M. M. Carville, as partners, on account for milk sold and delivered; that a writ of attachment was issued in said action, and levied upon two creameries, called the Maple Hill and the Sweezey creameries, which were owned by the said Carville, and upon which this plaintiff held a chattel mortgage from Carville to secure his promissory note for one thousand dollars and interest that, as grounds for said attachment, said Nicholas Kehoe alleged that said Carville had absconded; that said Carville and plaintiff were copartners; that the milk sought to be recovered for was sold to them as partners, and that plaintiff was insolvent. Plaintiff alleges that he was not a copartner with Carville, was not indebted for the milk sued for, was not insolvent, and that said Nicholas Kehoe had no reason to believe said statements to be true. He further alleges that said attachment was willfully and maliciously sued out, and that he had been damaged by reason thereof in the sum of twelve hundred dollars, "on the ground that, since said property was attached, this plaintiff has been unable, by reason of said attachment, to dispose of his note and mortgage, to foreclose said mortgage, or to insure said property covered by said mortgage; and that, while said property was held under said attachment, the creamery known as the Maple Hill creamery, which was of the actual value of fifteen hundred dollars, was totally destroyed by fire, by reason of which this plaintiff has been damaged in said sum, the Sweezey creamery being worth not to exceed two hundred dollars."

II. For the purpose of this demurrer the allegations of the petition are taken as true. According to the petition this plaintiff was not a copartner with Carville, and not indebted for the milk sued for; therefore, the attachment was wrongfully sued out as to him. The contention is whether he shows himself to have suffered any damage by reason of the attachment for which the sureties on the bond are...

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