Soesbe v. Lines
| Decision Date | 20 September 1917 |
| Docket Number | 31454 |
| Citation | 164 N.W. 129,180 Iowa 943 |
| Parties | C. W. SOESBE, Appellant, v. H. C. LINES, Appellee |
| Court | Iowa Supreme Court |
Appeal from Floyd District Court.--JOSEPH J. CLARK, Judge.
ACTION at law, originally brought on a contract for commission for the sale of real estate. In the main action, an attachment was issued, and defendant filed a counterclaim to recover damages on the attachment bond. The case was tried to a jury resulting in a verdict for the defendant in the main case and for $ 5 actual damages and $ 125 exemplary damages on the counterclaim. Judgment was rendered against plaintiff for these amounts, and the court taxed to plaintiff an additional sum of $ 65 as attorneys' fees to defendant's attorneys. The plaintiff appeals.--Reversed and remanded.
Reversed and remanded.
J. G Mitchell and C. M. Greene, for appellant.
M. Hartness and Frank Lingenfelder, Jr., for appellee.
The entire record seems to have been brought here, including the pleadings, evidence and instructions on the trial of the main action, as well as the counterclaim. The abstract contains 155 pages. But appellant states in argument that a reversal of the judgment entered against him upon the defendant's counterclaim is sought because, as he claims, no levy of attachment was in fact made, because the defendant's interest in the land was only an equitable interest, the legal title being in one Greene, and the levy and return, and the entry upon the encumbrance book, did not show that the levy was upon an equitable interest, as provided in Section 3899 of the Code; second, if a levy was made, defendant's possession and enjoyment of his property were undisturbed; third, the court erred in admitting over plaintiff's objection an item of expense in bringing abstract down to date, for the reason that there was no pleading in the counterclaim covering such alleged item of special damages, and because, without laying sufficient foundation, a carbon copy was offered instead of the original; and, as to the other item of alleged special damage relating to the value of time spent by defendant in consultation with his attorney with reference to the release of the attachment, that the evidence is uncertain as to the amount of time spent and the value thereof; and that, giving the evidence in the case all the weight it is entitled to, still, as a matter of law, there is no adequate support for the verdict. Some other considerations are also referred to--that the award of exemplary damages is disproportionate and excessive, and that the damage sustained by defendant, if any, was caused by his own misfeasance, etc. From this it will be seen that no question is presented in this court as to the trial of the main case on the contract, but that it relates solely to the counterclaim.
The court, by its instructions, authorized the jury to find damage on the following items: (1) Reasonable value of the loss of time and services, if any, in procuring the release of the attachment levy, and the delay, if any, in completing the sale of said property; (2) reasonable value and expense, if any, paid to complete the abstract of title. The court also instructed the jury that the defendant could not recover anything for attorneys' fees, as these are fixed by the court.
The allegation of the counterclaim for which damages are claimed are: The sum of $ 100 paid for attorneys' fees for defending against said attachment proceedings, and the further sum of $ 100 for loss of time and expenses incurred in defending against said attachment proceedings; the sum of $ 100 paid for attorneys' fees for prosecuting his cause of action on the attachment bond, and $ 200 as damages resulting directly from the levy of said writ upon said property, thereby depriving defendant of the use thereof, etc.
It is quite evident, from the finding of the jury in so small an amount as $ 5 actual damages, that nothing was allowed for delay in completing the sale of the property, so that the recovery of actual damages must have been either for the expense of the abstract or loss of time by defendant in consulting his attorney, or perhaps something for both these items, and the evidence was such that the total recovery of $ 5 could have been for the expense of the abstract alone. The evidence on this one item of the abstract varies from $ 3 to $ 8. There is no merit in appellant's claim that a carbon copy of the abstract was introduced in evidence, instead of the original, because the question was how much defendant expended for the abstract. He could have shown this without producing either the original or the copy. Appellee concedes in argument that these items are special damages. Appellant contends that these items are not pleaded as special damages and that it is necessary to do so. So that, if they are not pleaded, and the jury allowed the $ 5 actual damages for the abstract, it would not authorize recovery for that, or if the $ 5 was partly for the abstract, it would have the same effect to that extent. As said, it may have been all for that item. We have no means of knowing. This leaves, then, the only other item for which a recovery could have been had, as special damages, was defendant's time. In the opinion of the writer, it...
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