Nordhaus v. Peterson Bros.
| Court | United States State Supreme Court of Iowa |
| Writing for the Court | DAY |
| Citation | 54 Iowa 68,6 N.W. 77 |
| Parties | NORDHAUS v. PETERSON BROTHERS |
| Decision Date | 15 June 1880 |
54 Iowa 68
6 N.W. 77
NORDHAUS
v.
PETERSON BROTHERS
Supreme Court of Iowa.
Filed June 15, 1880.
Appeal from Cedar district court.
This is an action to recover damages for the alleged wrongfully and maliciously suing out of an attachment against the plaintiff. The defendants procured an attachment against the plaintiff upon the ground that he had disposed of his property, in whole or in part, with intent to defraud his creditors. The attachment was levied upon the entire stock of goods of the plaintiff, and his place of business was closed. After the levy the plaintiff sold his entire stock to the defendants, and the price was credited upon the debt which the plaintiff owed the defendants. The cause was tried to a jury and a general verdict was returned for the plaintiff for $618.59. At the request of the defendants special interrogatories were submitted to the jury, which, with the answers thereto, are as follows:
[6 N.W. 78]
1. “Do you find that the attachment was sued out maliciously, or with the intention, design or purpose of injuring Nordhaus?” Answer. “Yes.”
2. “Do you find that the plaintiffs in the attachment suit submitted their case to an attorney, and that on the case submitted they were advised that they had a good cause of action and a right to sue out the attachment.” A. “No.”
3. “Do you find that plaintiffs in such attachment suit had reasonable cause to believe the ground upon which such attachment was sued out was true?” A. “No.”
The motion for a new trial was overruled, and judgment was entered for the plaintiff upon the verdict. The defendants appeal.
C. A. Ficke and Piatt & Carr, for appellants.
Wolf & Landt, for appellee.
DAY, J.
1. In the third, fourth, and fifth instructions the court in substance directed the jury that the plaintiff might recover if he had not disposed of his property, in whole or in part, with intent to defraud his creditors. These instructions are erroneous. In order to justify a recovery upon the attachment bond it must appear not only that the ground alleged for the suing out of the attachment does not exist, but that the defendant had no reasonable cause to believe it existed. Code, § 2961; Benton v. Knapp, 14 Iowa, 196. Whilst these instructions are erroneous, the error was without prejudice to the defendants. The jury have found specially that the plaintiffs in the attachment suit had no reasonable cause to believe the ground upon which the attachment was sued out was true. It follows that if this element had...
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Amos v. Prom, Civ. No. 571.
...the trier of fact is then permitted to infer the improper state of mind from the absence of probable cause. See Nordhaus v. Peterson, 1880, 54 Iowa 68, 6 N.W. 77; Smith v. Howard, 1869, 28 Iowa 51; Ritchey v. Davis, 1860, 11 Iowa 124. The resulting rule would seem to be that exemplary damag......
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Ames v. Chirurg
...stated in other cases, an attachment is wrongful, if sued out when there is in fact no indebtedness. Nordhaus v. Peterson, 54 Iowa, 68, 6 N. W. 77;Porter v. Wilson, 4 G. Greene, 314;Weller v. Hawes, 49 Iowa, 45. But the remedy in such case is for abuse of process or malicious prosecution. S......
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Peters v. Snavely-Ashton
...if the action be founded on contract, and there was in fact no indebtedness, the attachment is wrongful. Nordhaus v. Peterson, 54 Iowa, 68, 6 N. W. 77;Porter v. Wilson, 4 G. Greene, 314. And we have also held that attorney's fees may be considered as part of the damages suffered by the defe......
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Union Mill Co. v. Prenzler
...misstatement. The instruction with reference to exemplary damages closely follows the rule announced in Nordhaus v. Peterson, 54 Iowa, 71, 6 N. W. 77, and Hurlbut v. Hardenbrook, 85 Iowa, 606, 52 N. W. 510. The effect to be given advice of counsel was properly set forth, and instruction No.......
-
Amos v. Prom, Civ. No. 571.
...the trier of fact is then permitted to infer the improper state of mind from the absence of probable cause. See Nordhaus v. Peterson, 1880, 54 Iowa 68, 6 N.W. 77; Smith v. Howard, 1869, 28 Iowa 51; Ritchey v. Davis, 1860, 11 Iowa 124. The resulting rule would seem to be that exemplary damag......
-
Ames v. Chirurg
...stated in other cases, an attachment is wrongful, if sued out when there is in fact no indebtedness. Nordhaus v. Peterson, 54 Iowa, 68, 6 N. W. 77;Porter v. Wilson, 4 G. Greene, 314;Weller v. Hawes, 49 Iowa, 45. But the remedy in such case is for abuse of process or malicious prosecution. S......
-
Peters v. Snavely-Ashton
...if the action be founded on contract, and there was in fact no indebtedness, the attachment is wrongful. Nordhaus v. Peterson, 54 Iowa, 68, 6 N. W. 77;Porter v. Wilson, 4 G. Greene, 314. And we have also held that attorney's fees may be considered as part of the damages suffered by the defe......
-
Union Mill Co. v. Prenzler
...misstatement. The instruction with reference to exemplary damages closely follows the rule announced in Nordhaus v. Peterson, 54 Iowa, 71, 6 N. W. 77, and Hurlbut v. Hardenbrook, 85 Iowa, 606, 52 N. W. 510. The effect to be given advice of counsel was properly set forth, and instruction No.......