Nordhaus v. Peterson Bros.
| Citation | 54 Iowa 68,6 N.W. 77 |
| Parties | NORDHAUS v. PETERSON BROTHERS |
| Decision Date | 15 June 1880 |
| Court | United States State Supreme Court of Iowa |
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:
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.
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 been incorporated in these instructions it could have made no difference in the general verdict.
2. In the fourth instruction the court directed the jury that “it makes no difference whether plaintiff owed Peterson Bros. anything at the time said writ was issued or not.” It is claimed that this direction is erroneous. Abstractly considered it may be so, for if the plaintiff did not owe Peterson Bros., that alone would probably be conclusive of the fact that the attachment was wrongfully sued out. Gaddis v. Lord & Jewett, 10 Iowa, 141. In this case the fact that the plaintiff owed Peterson Bros. is fully established. The only question, then, upon which the wrongful suing out of the attachment in this case depends is, did the plaintiff have reasonable ground to believe that the defendant in that action had disposed of his property, in whole or in part, with intent to defraud his creditors? The fact that the plaintiff owed the Petersons does not affect this question. As applied to the facts of this case the construction is correct.
3. The defendants assign as error the giving of the following instruction: ...
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Ames v. Chirurg
...course, as heretofore 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 Hawes, 49 Iowa 45. But the remedy in such case is for abuse of process or malici......
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Ames v. Chirurg
...as heretofore 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 ......
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Kirby v. First National Bank
...“probable cause.” Slaughter v. Nolan, 169 N.W. 232; Vander Linden v. Oster, 156 N.W. 911; Brown v. Keyes, 223 N.W. 819; Nordhaus v. Peterson Bros., 54 Iowa 68, 6 N.W. 77; Richardson v. Dybedahl et al., 84 N.W. 486; 6 CJ § Under the rule followed in these cases it is necessary to examine the......
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Nordhaus v. Peterson Brothers
... ... not owe Peterson Brothers, that alone would probably be ... conclusive of the fact that the attachment was wrongfully ... sued out. Gaddis v. Lord & Jewett, 10 Iowa 141. In ... this case the fact that the plaintiff owed Peterson Bros. is ... fully established. The only question, then, upon which the ... wrongful suing out of the attachment in this case depends is, ... did the plaintiffs have reasonable ground to believe that the ... defendant in that action had disposed of his property in ... whole or in part with intent ... ...