Smeaton v. Cole

• Decision Date: 14 May 1903
• Parties: DAVID SMEATON, Appellant, v. C. C. COLE
• Court: Iowa Supreme Court

94 N.W. 909

120 Iowa 368

DAVID SMEATON, Appellant, v. C. C. COLE

Supreme Court of Iowa, Des Moines

May 14, 1903

Appeal from Polk District Court.--HON. W. F. CONRAD, Judge.

IN this action, damages are demanded of defendant for suing out a landlord's writ of attachment maliciously and without probable cause. To support the allegations of the petition the pleadings in the former action, a part of the court's instructions, the judgment therein, and some of the proceedings incident to the care of the property seized, were introduced in evidence. From these it appears that this defendant, as plaintiff in that action, began a suit for the recovery of $ 114 as rent for the use of a greenhouse April 23, 1892, under a written lease, alleged to have been assigned by a former tenant to this plaintiff, caused a writ of attachment to be issued and levied on " all plants and flowers in rooms Nos. 1, 2, 3, and 4" thereof, and also a mare, buggy, and single wagon, and two days later procured the appointment of a receiver. Five hundred dollars was also asked as damages said to have been occasioned by breaches of the said written lease. This plaintiff answered therein September 13, denying the assignment, and alleging an oral arrangement, by the terms of which the defendant was to turn over to him all the pots and plants, save two large palms, and he to pay a monthly rental of $ 15, and put in condition and repair the buildings and grounds, and defendant to furnish necessary materials and put and keep in repair the heating apparatus; that, owing to this defendant's failure to furnish material and repair as aforesaid, plants to the value of $ 1,500 were destroyed by frost; and also that he had furnished materials at this defendant's instance to the value of $ 99.65. Upon trial the defendant herein was allowed rent as claimed, and the plaintiff herein $ 400 on his counterclaim. The foregoing was all the evidence introduced by plaintiff, and, when he had rested, the court on motion, directed a verdict for the defendant. From the judgment entered thereon, plaintiff appeals.

Affirmed.

Bowen & Brockett for appellant.

John Newburn and C. C. Cole for appellee.

LADD J. BISHOP, C. J., taking no part.

OPINION

LADD, J.

The sum of $ 114 was found due the landlord for rent accrued precisely as alleged in his-petition, and the tenant was allowed $ 400 on his counterclaim. Contrary to appellant's contention, this was a finding that something was due plaintiff, within the meaning of our statutes. Section 2992 of the Code creates a lien for rent in favor of the landlord, and the section following provides that the lien may "be effected by the commencement of an action during the period above prescribed for rent alone, in which action the landlord will be entitled to a writ of attachment, upon filing with the clerk or justice a verified petition stating that the action is commenced to recover rent accrued within one year previous thereto upon premises described in the petition, and the procedure thereunder shall be the same, as nearly as may be, as in other cases of attachment, except no bond shall be required." As the rent had accrued, the defendant might resort to this remedy, provided he followed the procedure prescribed by ordinary attachments. Section 3880 of the Code requires the petition, when the action is on contract, to "state that something is due and, as nearly as practicable, the amount." This is to serve as a guide to the sheriff, who must levy on property one and one-half times in value such amount. Section 3881. Where the action is not based on contract, the allowance in value of property to be levied on must be fixed by the judge. Section 3882. Section 3883 relates to the suing out of a writ of attachment "on debts not due when nothing but time is wanting to fix an absolute indebtedness," additional grounds therefor to be stated in the petition. It is manifest from these statutes that the word "due," as used in them, has reference to the maturity of the claim, rather than the balance of indebtedness owing from one party to the other. What must be alleged is that something is due. On what? The contract sued on, and the amount thereof, are to be stated. Something may be owing by the plaintiff to the defendant in another transaction, but if it has not been applied in payment, such debt continues unimpaired, and defendant may elect not to plead it as a set-off or counterclaim, but to make it the subject of a separate and distinct action. Jones v. Witousek, 114...