Peters v. Snavely-Ashton

CourtUnited States State Supreme Court of Iowa
Writing for the CourtDEEMER
Citation144 Iowa 147,122 N.W. 836
Decision Date19 October 1909

144 Iowa 147
122 N.W. 836


Supreme Court of Iowa.

Oct. 19, 1909.

Former opinion modified. Petition for rehearing overruled.

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

[122 N.W. 836]


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...

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16 cases
  • Petrie v. Wyman
    • United States
    • United States State Supreme Court of North Dakota
    • 14 Settembre 1916
    ...v. Hoppe, 132 Mo.App. 449, 111 S.W. 1190; Clay Lumber Co. v. Hart's Branch Coal Co. 174 Mich. 613, 140 N.W. 912; Peters v. Snavely-Ashton, 144 Iowa 147, 120 N.W. 1048, 122 N.W. 836; Bedford v. Kissick, 8 S.D. 586, 67 N.W. 609; Grand Lodge, U. B. F. v. Harrison, 5 Ala.App. 373, 59 So. 307; B......
  • James v. Cannell, 18957.
    • United States
    • United States State Supreme Court of Washington
    • 19 Giugno 1925
    ...Wilson v. Root, 43 Ind. 486; State to use of Hayden v. McHale, 16 Mo.App. 478; Peters v. Snavely-Ashton, 144 Iowa, 147, 120 N.W. 1048, 122 N.W. 836; Tripp Bros. v. Hymer (Ky.) 99 S.W. 330; 1 Shinn, Attachments and Garnishments, § 190 et seq. If the attorney's fees may be collected as a part......
  • Ames v. Chirurg
    • United States
    • United States State Supreme Court of Iowa
    • 27 Settembre 1911 by counterclaim in the main action, or an independent suit upon the bond. See Peters v. Snavely-Ashton, 144 Iowa, 147, 120 N. W. 1048, 122 N. W. 836. But even in such cases it has been doubted whether attorney's fees may be recovered for defending the main action, to which the attachment......
  • Bishop v. Baird & Baird, 47048.
    • United States
    • United States State Supreme Court of Iowa
    • 14 Ottobre 1947
    ...on contract, the inference of want of probable cause and malice may be drawn from the finding of nothing due. Peters v. Snavely-Ashton, 144 Iowa 147, 155, 120 N.W. 1048, 122 N.W. 836; Smeaton v. Cole, 120 Iowa 368, 372, 94 N.W. 909. We conclude such inference would be permissible where, as ......
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