Peters v. Snavely-Ashton

• Decision Date: 08 May 1909
• Citation: 144 Iowa 147,120 N.W. 1048
• Parties: PETERS ET AL. v. SNAVELY-ASHTON.
• Court: Iowa Supreme Court

144 Iowa 147

120 N.W. 1048

PETERS ET AL.

v.SNAVELY-ASHTON.

Supreme Court of Iowa.

May 8, 1909.

Appeal from District Court, Johnson County; R. P. Howell, Judge.

Action to recover a sum of money from defendant by reason of the allegation that it had been withheld from plaintiffs, and by defendant converted to her own use. The action was aided by an attachment, which was served by garnishing Hon. Milton Remley, or Remley & Remley, attorneys for defendant. Defendant moved to dissolve the attachment, and the motion was sustained. Defendant then pleaded a counterclaim for the wrongful suing out of the attachment. Plaintiffs thereupon dismissed their action, and the cause finally went to trial upon defendant's counterclaim for the wrongful suing out of the attachment, resulting in a verdict and judgment for defendant against all the plaintiffs in the sum of $1,500. Plaintiffs appeal. Reversed.Wade, Dutcher & Davis, for appellants.

Milton Remley and Ranck & Bradley, for appellee.

DEEMER, J.

Plaintiffs in their petition alleged that defendant was indebted to them in the sum of $3,500 by reason of the receipt by her of property belonging to Michael Snavely, deceased, which was devised and bequeathed to them by the said deceased. As grounds of attachment plaintiff alleged that the defendant is about to remove her property out of the state, without leaving sufficient remaining for the payment of her debts; that the defendant is a nonresident of the state; that the defendant is about to dispose of her property with intent to defraud her creditors; that she is about to remove her property, or a part thereof, out of the county, with intent to defraud her creditors; that she is about to convert her property, or a part thereof, into money for the purpose of placing it beyond the reach of her creditors; that defendant is about to remove permanently out of the county, and she has property therein not exempt from execution, and that she refuses to pay or to secure these plaintiffs; that she is about to remove permanently out of the state, and refuses to pay or secure the debt due the plaintiffs. A writ of attachment issued, directing the sheriff to attach the property of defendant, Laura B. Snavely-Ashton, and thereunder Hon. Milton Remley, defendant's attorney, was garnished as a supposed debtor of defendant, and ordered to retain in his possession any money or property belonging to the defendant. The attachment bond was in the sum of $7,000, was signed by Frances Peters as principal and J. L. Peters as surety, and contained the following conditions: “The condition of the above obligation is such that whereas, Frances Peters et al., as plaintiff, did on the 28th day of July A. D. 1896, file his petition in the clerk's office of the district court of Johnson county, Iowa, against Laura B. Snavely-Ashton as defendant, claiming the sum of thirty-five hundred dollars, as money justly due him from said defendant, and asking that a writ of attachment may issue against the property, rights and credits of said Laura B. Snavely-Ashton: Now, therefore, if the said Frances Peters et al. shall well and truly pay unto the said Laura B. Snavely-Ashton all the damages which the said Laura B. Snavely-Ashton shall sustain by reason of the wrongful suing out of said attachment, then this obligation to be void and of no effect; otherwise to remain in full force and virtue.” The action was commenced July 30, 1906, and the garnishment was run on the same day. On September 10, 1906, defendant appeared and filed a motion in the main case, asking that plaintiffs separate their causes of action. On the 11th of the same month defendant filed a motion to discharge the attachment, based upon the ground that plaintiffs had no cause of action, because the money held by defendant was in her hands as trustee, and that she was entitled to hold the same until an order of distribution should be made by the court, and for the further reasons that the grounds stated for the attachment were false and untrue. This motion was sustained on December 4, 1906.

Defendant's counterclaim on the attachment bond was filed May 8, 1907, and was based upon the untruthfulness of the statements made as grounds for the attachment, and on the further ground that plaintiffs had no cause of action against the defendant. The damages asked were $350 attorney's fees, traveling expenses in attending court $60, loss of time in attendance upon court $50, and for deprivation of the use of her money $540. Defendant also asked exemplary damages in the sum of $1,000. Plaintiffs filed various pleadings to this counterclaim, in which they admitted that Frances Peters gave the bond, but they denied that any attachment was run, or any garnishment served, which would in any manner affect property held by defendant as trustee or executrix, and denied that any damages were suffered by defendant. They also averred that the garnishee held no money belonging to defendant, and also pleaded that the garnishment did not affect any property held by him for defendant as trustee or executrix. They also pleaded the following facts: “That at the time the said writ of attachment therein referred to was sued out, and an attempt was made to garnish Remley & Remley thereunder, this defendant claimed that the funds in the hands of Remley & Remley was the property of M. F. Snavely, and asked for the dissolution of said writ of attachment on the said grounds that subsequent thereto this defendant, as executrix of the estate of M. F. Snavely, filed her report, wherein she undertook to account for the property and funds belonging to said estate; that in said report she accounted for the said money which was in the hands of Remley & Remley as funds belonging to said estate of M. F. Snavely, deceased, and asked for an order to distribute the same as a part of the property of the said estate; that the court, in passing upon said report, ordered distribution thereof to be made by her as executrix; that the said defendant has at all times treated the said money as the property of the estate of the said M. F. Snavely, and that by reason of the foregoing statements she is now estopped from denying that said property and all of the same was the property of the said estate of M. F. Snavely, and estopped from making or claiming any individual interest or right therein at the time said writ of attachment was issued and said attempted levy was made.” Some other issues were tendered, which need not be noticed at this time.

In order to show that the attachment was wrongfully sued out defendant was permitted to show, over plaintiffs' objections, that she was not about to dispose of her property with intent to defraud her creditors, and that she was not about to remove her property out of the state without leaving sufficient remaining for the payment of her debts (as a conclusion of the witness), and as to her intention with reference to making distribution of property then in her hands. Under our previous cases these rulings were manifestly erroneous. Selz v. Belden, 48 Iowa, 451;Charles City Plow Co. v. Jones, 71 Iowa, 234, 32 N. W. 280. The reason for this is that the question involved is that she so conducted herself as to give plaintiffs reasonable ground to believe that the grounds for attachment were true. Defendant says, however, that the rulings, though erroneous, were not prejudicial for the reason that the attachment was wrongful in any event, because there was no debt from defendant to plaintiffs. Here again counsel overlooks our decisions which hold that there can be no recovery of attorney's fees unless plaintiff had no reasonable cause for believing that the grounds for attachment were true. Dickinson v. Athey, 96 Iowa, 363, 65 N. W. 326;Porter v. Knight, 63 Iowa, 365, 19 N. W. 282. In this connection we may say that instruction No. 8, given by the trial court, was erroneous, in that it authorized the jury to allow reasonable attorney's fees to defendant for securing the release of the attached property. Attorney's fees cannot be allowed save in an action on the bond, and these by statute are to be fixed by the court. See Code, § 3887; Vorse v. Phillips, 37 Iowa, 428;Union Mercantile Co. v. Chandler, 90 Iowa, 650, 57 N. W. 595;Plumb v. Woodmansee, 34 Iowa, 116;Selz v. Belden, 48 Iowa, 451;Kilmer v. Gallaher, 120 Iowa, 575, 95 N. W. 180.

2. The trial court instructed that the writ was wrongfully sued out as a matter of law, but left it to the jury to say as to whether or not plaintiffs had reasonable cause to believe that the grounds for attachment were true. That the exact point raised may be fully understood, we here set forth the material instructions given upon this subject:

“Third. It having been heretofore determined, as shown by the evidence in this case, that the writ was wrongfully sued out as a matter of law, it leaves but the one question for you to determine, and that is as to whether or not plaintiffs had reasonable cause to believe the grounds for which the attachment was sued out; and, if you find that they did not have, then the defendant would be entitled to recover such actual damages as she has shown by the evidence she has sustained, and if you should find, as hereinafter instructed, that the writ was maliciously sued out, she would be entitled to exemplary damages as hereinafter instructed, but if you do not so find she would not be entitled to recover exemplary damages. You must, however, bear in mind that the burden of proof is upon the defendant to establish her cause of action, and the liability of the plaintiffs, by a preponderance of evidence; and, if she has not done so, she cannot recover.

Fourth. Now it is claimed that the bond has been violated or broken because it is claimed that the plaintiffs wrongfully, willfully, maliciously, and without reasonable cause sued out the writ of attachment. As heretofore instructed the writ was wrongfully sued out, and it is for you...