Peters v. Snavely-Ashton

• Decision Date: 19 October 1909
• Citation: 144 Iowa 147,122 N.W. 836
• Parties: PETERS ET AL. v. SNAVELY-ASHTON.
• Court: Iowa Supreme Court

144 Iowa 147

122 N.W. 836

PETERS ET AL.

v.SNAVELY-ASHTON.

Supreme Court of Iowa.

Oct. 19, 1909.

Former opinion modified. Petition for rehearing overruled.

For former opinion, see 120 N. W. 1048.

DEEMER, J.

In a petition for rehearing filed by appellee's counsel the conclusion in the first division of the opinion, with reference to the allowance of attorney's fees, is challenged, and upon a re-examination of the points therein decided, we are of opinion that we were wrong with respect to the propositions there stated. Section 3885 of the Code provides, in substance, that in all cases of attachment plaintiff must give a bond for the use of the defendant in a penalty at least double the value of the property sought to be attached, conditioned that the plaintiff will pay all damages which the defendant may sustain by reason of the wrongful suing out of the attachment. Section 3880 reads as follows: “If the plaintiff's demand be founded on contract, the petition must state that something is due, and as nearly as practicable, the amount, which must be more than five dollars in order to authorize an attachment.” Section 3888 reads in this wise: “The fact stated as a cause of attachment shall not be contested in the action by a mere defense. The defendant's remedy shall be on the bond, but he may in his discretion sue thereon by way of counterclaim, and in such case shall recover damages as in an original action on such bond.” And by section 3887 it is provided: “In an action on such bond, the plaintiff therein may recover, if he shows that the attachment was wrongfully sued out, and that there was no reasonable cause to believe the ground upon which the same was issued to be true, the actual damages sustained, and reasonable attorney's fees to be fixed by the court; and if it be shown such attachment was sued out maliciously, he may recover exemplary damages nor need he wait until the principal suit is determined before suing on the bond.” In construing these various sections we have heretofore held that 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 defendant in case the attachment is wrongfully sued out. Whitney v. Brownewell, 71 Iowa, 251, 32 N. W. 285;Connelly v. White, 122 Iowa, 391, 98 N. W. 144.

There is some confusion in our cases upon this subject, due to what we now believe to have been a misapprehension of the effect of section 3887 of the Code. We have said in some of these cases that attorney's fees are to be fixed by the court, and are not to be considered by the jury in awarding the damages. Dickinson v. Athey, 96 Iowa, 363, 65 N. W. 326;Porter v. Knight, 63 Iowa, 365, 19 N. W. 282. But in each of these cases the only question was the allowance of attorney's fees to be made under that section, which are to be allowed, as we now think, as part of the costs, not for defending against the attachment, but for the prosecution of the action on the bond, either in an original proceeding or by way of counterclaim. The statute itself provides that defendant shall be allowed the actual damages sustained and reasonable attorney's fees to be taxed by the court. The attorney's fees here mentioned are not the damages for securing the release of the attachment, but are allowed as part of the costs of the action to recover the damages. This is the only theory upon which such attorney's fees may be fixed by the...