Union Mercantile Co. v. Chandler

• Decision Date: 23 January 1894
• Citation: 57 N.W. 595,90 Iowa 650
• Parties: UNION MERCANTILE COMPANY Appellant, v. J. R. CHANDLER, Appellee
• Court: Iowa Supreme Court

57 N.W. 595

90 Iowa 650

UNION MERCANTILE COMPANY Appellant, v. J. R. CHANDLER, Appellee

Supreme Court of Iowa, Des Moines

January 23, 1894

Appeal from Polk District Court.--HON. C. P. HOLMES, Judge.

ACTION on an account, aided by attachment. The account is admitted and a cross action filed for the wrongful suing out of the attachment. There was a verdict and judgment for the defendant. The court refused the defendant an attorney's fee, and both parties have appealed.--Upon defendant's appeal, reversed; upon plaintiff's appeal, modified and affirmed.

Upon defendant's appeal, the order of the court REVERSED; upon plaintiff's appeal, the judgment modified and AFFIRMED.

A. A Haskins for plaintiff.

Berryhill & Henry for defendant.

OPINION

GRANGER, C. J.

The account sued on is for fifty-seven dollars and twenty-nine cents, and it is by the answer admitted. The damages sought in the cross action were one thousand, five hundred dollars. The bond filed in obtaining the attachment was in a penalty of two hundred and fifty dollars. The sureties on the bond are not parties to the cross action. The attachment was levied on a leasehold interest in a lot and building and on a stock of goods, on all of which were prior liens. On the application of the plaintiff, a receiver was appointed, who under orders of the court, sold all the property for six hundred and thirty-four dollars and fifty-three cents, and applied the same to the discharge of the prior liens, so that nothing remained under the attachment. The trial of the issues for the wrongful suing out of the attachment resulted in a verdict for the defendant for nine hundred and sixty-eight dollars. The defendant filed a remittitur of the damage in excess of the penalty of the bond ($ 250), and judgment was entered for that sum. The jury returned special findings that the attachment was wrongfully, but not maliciously, sued out. We will first notice the assignments of error by the plaintiff.

I. The parties are in contention whether the cross action is a statutory one on the bond, or a common law action for maliciously suing out the writ; the plaintiff maintaining that it is the latter. The court below held the cross action to be on the bond, and, we think, rightly so. The cross petition does not bear the usual evidence or indications of a petition in an action for damage for the suing out of a writ of attachment maliciously and without probable cause. Its allegations, though not in some respects apt, are more nearly in conformity to the usual pleading in an action on the bond. A paragraph of the cross petition states "that, at the time of the suing out of said writ of attachment, the plaintiff filed with the clerk of this court an attachment bond, wherein it bound itself to pay all damages this defendant might sustain by reason of the wrongful suing out of said attachment. Said bond and said writ are hereby made a part of this answer and counterclaim as though fully set forth herein." We infer the intent of the pleader to have been to make the bond and writ parts of the petition, by reference to them as parts of the record in the case. The law, of course, requires the bond, as an instrument on which recovery is sought, to be set out in, or attached to, the petition; and it is quite manifest that an omission to do so is but an error in pleading. The plaintiff suggests that the fact that the petition claims one thousand, five hundred dollars as damage, when the penalty of the bond is only two hundred and fifty dollars, shows that the action was not intended as on the bond. The defendant's answer to the petition is that the excessive amount was claimed under a belief that, inasmuch as the action was alone against the plaintiff, the penalty on the bond would not limit his liability in the suit; that the penalty only limited the liability of the sureties on the bond. The district court held that the limitation applied alike to the principal and sureties, upon which, as we understand, the remittitur was filed. That view is in harmony with the general averments of the petition, and preserves their force, while the other view renders some of them entirely without force, and irrelevant.

II. Plaintiff asked the court to give an instruction to the effect that in no event could the defendant recover a sum in excess of two hundred and fifty dollars, which the court refused. The instruction should have been given. From the record, however, we may assume that, had it been given, the defendants recovery would have been for the full penalty of the bond, because, under the same evidence, it was largely in excess of it. The filing of the remittitur, then, placed the plaintiff in the position he would have been in had the instruction been given; hence, the error was without prejudice.

III. It will be remembered that, after the levy of the attachment, at the instance of the plaintiff, a receiver was appointed, who under order of the court, sold the property, and applied the proceeds to the discharge of prior liens. In view of these facts, the plaintiff asked the following instruction: "You are instructed that, unless you find that some money or property came...