Tisdale v. Major

• Citation: 106 Iowa 1,75 N.W. 663
• Parties: TISDALE v. MAJOR.
• Decision Date: 25 May 1898
• Court: United States State Supreme Court of Iowa

106 Iowa 1

75 N.W. 663

TISDALE

v.MAJOR.

Supreme Court of Iowa.

May 25, 1898.

Appeal from district court, Wapello county; T. M. Fee, Judge.

Action at law, aided by attachment, to recover an amount alleged to be due from the defendants Dietrich & Capell and the members of that firm on a promissory note and on accounts. C. W. Major, as assignee of the defendants, intervened. There was a trial by the court without a jury, and a judgment in favor of the plaintiff. The intervener appeals. Affirmed.McElroy & Heindel, for appellant.

McNett & Tisdale, for appellee.

ROBINSON, J.

The writ of attachment was issued on the alleged grounds that the defendants were about to dispose of their property with intent to defraud their creditors, and that they had disposed of their property, in whole or in part, with intent to defraud their creditors. The writ was levied upon certain real estate in the city of Ottumwa. The defendants appeared to the action, and filed an answer, in which they admitted that they were indebted to the plaintiff on the note and accounts in suit to the amount claimed, but allege that the attachment was wrongfully and maliciously sued out, and that on the day it was levied they made to C. W. Major an assignment of all their property not exempt from execution for the benefit of their creditors. On the same day the assignee filed a petition of intervention, in which he admitted the indebtedness of the defendants as alleged by the plaintiff, and sought to recover on the attachment bond, by virtue of the assignment by the defendants to him, for damages alleged to have been sustained by the defendants, in consequence of the alleged wrongful and malicious suing out and levying of the writ of attachment. A motion to strike out portions of the petition of intervention was sustained in part, the intervener thereafter filed an “amended and supplemental petition,” and a motion to strike out portions of that petition was sustained. No evidence was offered on the trial in behalf of the defendants and the intervener, and the questions presented by the appeal for our consideration grow out of the sustaining of the motions.

1. One of the paragraphs of the petition of intervention which was stricken out purports to state a part of the damages alleged to have been sustained by the defendants, and is as follows: “In the depreciation in the market value of said attached property, caused by the issuance and levy of said writ of attachment in the sum of $2,000.” It is stated in the petition that the property levied upon was a mill used in manufacturing doors, sash, blinds, counters, book cases, and other articles, and that it was equipped with a large quantity of valuable machinery, which was a part of the mill and of the property upon which the attachment was levied. It does not appear that possession of any part of the property levied upon was taken under the writ, nor that the right of the defendants and their assignee to use it was interfered with in any manner. The question to be determined is whether an attaching creditor is liable for the depreciation in value of real estate levied upon, which occurs while the attachment is in force. The mere issuing and levying of a writ of attachment upon real estate cannot ordinarily cause it to depreciate in value. The appellant suggests that some portion of the machinery might become worthless, or out of date, and in that case it could not be exchanged for new and improved machinery. Nothing of that character is suggested by the portion of the petition stricken out, nor would proof of damage by reason of inability to make improvements, or by loss of a sale, be material under it. It is the general rule that the depreciation of real property upon which a writ of attachment has been levied, which occurs while the levy remains in force, if there be no change of possession, is not the immediate result of the attachment, and recovery therefor cannot be had of the attaching creditor. Heath v. Lent, 1 Cal. 410;Trawick v. Martin-Brown Co., 79 Tex. 460, 14 S. W. 564;Brandon v. Allen, 28 La. Ann. 60; Muldoon v. Rickey, 103 Pa. St. 110; Drake, Attachm. § 179; Wade, Attachm. § 301; 2 Suth. Dam. § 512. The only case cited by the appellant as holding a...