Miller v. Beck

• Decision Date: 20 October 1897
• Parties: MILLER v. BECK ET AL.
• Court: Iowa Supreme Court

72 N.W. 553

MILLER

v.BECK ET AL.

Supreme Court of Iowa.

Oct. 20, 1897.

Appeal from district court, Pottawattamie county; Walter I. Smith, Judge.

Action at law on an attachment bond to recover for damages alleged to have been caused by the issuing and service of the writ of attachment. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal. Affirmed.Sims & Bainbridge, for appellants.

Harl & McCabe, for appellee.

ROBINSON, J.

On the 3d day of January, 1890, the defendant Fr. Beck & Co. commenced an action against the plaintiff in this case to recover the sum of $877.59, on six promissory notes. Six days later an amendment to the petition was filed, asking the issuance of a writ of attachment, on various grounds. An attachment bond was filed, signed by Fr. Beck & Co., as principal, and J. D. Edmundson, its co-defendant, as surety; and a writ of attachment was issued and served by levying it upon certain real estate, upon a stock of wall paper, and by garnishing a bank in which Miller had a deposit. The plaintiff avers that the grounds alleged for an attachment were untrue, that the defendants had no reasonable cause to believe them to be true, and that the writ was sued out maliciously. Judgment for the sum of $2,000 and costs is demanded. The answer admits the commencement of the action, and that an attachment was issued and served as alleged, but denies all averments of wrong on the part of the defendants, and of damages to the plaintiff. The answer also states that, at the time the writ of attachment complained of was levied, there was pending in the same court another action against Miller, in which Schaber, Reinthal & Co. was plaintiff, to recover the sum of about $500, in which a writ of attachment was issued and levied; that Miller filed a counterclaim in that action, on the attachment bond, in which he alleged that the grounds stated for the attachment were untrue, and that the attachment was wrongfully and maliciously sued out; and that upon the trial Miller recovered about the sum of $500 on his counterclaim. The answer in this case further alleges that the damages the plaintiff in this case claims to have sustained are precisely the same as those for which he recovered in the Schaber, Reinthal & Co. case, that the amount of the recovery in that case has been paid, and that by reason of these facts the plaintiff is estopped to recover in this action. The verdict of the jury was for the sum of $580.75, and judgment for that amount and costs was rendered in favor of the plaintiff.

1. The grounds for attachment alleged in the

two cases against Miller were the same, the attachment bond in each case was signed by the same surety, the same attorneys represented each plaintiff in suing out the attachments, and the writs were procured and delivered to the sheriff for service at the same time. When they were so delivered the attorney who was acting for the two plaintiffs instructed the sheriff to so levy the writs that the one in favor of Beck & Co. would hold the bank as garnishee, and be a first lien on Miller's stock of wall paper, paints, and other articles, and a second lien on the real estate in question; the other writ to be a first lien on the real estate, and to be subject to the levy of Beck & Co.'s writ on the stock of merchandise. The levies were made as directed. The stock was sold as perishable property for the sum of $520, all of which, excepting $31 applied on rent, was paid into court. Beck & Co. obtained judgment in its action against Miller, and received in part payment of it proceeds of the garnishment and stock, to the amount of $560.53. The action of Schaber, Reinthal & Co. against Miller was founded upon three promissory notes, the making of which was admitted, upon which there appeared to be due about $500. The jury in that case found that the writ of attachment was wrongfully, but not maliciously, sued out, and returned a verdict in favor of Miller, and judgment was rendered in his favor for an attorney's fee of $150 and costs. The injuries alleged to have been caused in the Schaber, Reinthal & Co. case are substantially the same in all respects as those claimed to have been sustained in the other case, for which the plaintiff in this case now seeks to recover, and it is insisted by the defendants that the plaintiff is attempting to collect the second time for the same injuries; that the plaintiffs in the attachment suits acted in concert in suing out and levying the attachments, and, if the attachments were issued wrongfully, that they were joint wrongdoers; and that the effect of the judgment in the Schaber, Reinthal & Co. case was...