Union Mill Co. v. Prenzler

CourtUnited States State Supreme Court of Iowa
Writing for the CourtDEEMER
Citation69 N.W. 876,100 Iowa 540
PartiesUNION MILL CO. v. PRENZLER.
Decision Date20 January 1897

100 Iowa 540
69 N.W. 876

UNION MILL CO.
v.
PRENZLER.

Supreme Court of Iowa.

Jan. 20, 1897.


Appeal from district court, Des Moines county; James D. Smyth, Judge.

This is an action at law, aided by attachment, originally commenced against L. Seuffert to recover the sum of $2,655 claimed to be due plaintiff for flour and feed sold and delivered. The defendant answered, admitting the claim, and pleading a counterclaim against the plaintiff and sureties upon the attachment bond for the wrongful suing out of the writ. After the filing of the answer, and before the case was called for trial, Seuffert died, and his administrator was substituted. The case was tried to a jury, resulting in a verdict and judgment for defendant in the sum of $3,114. Plaintiff appeals. Affirmed.

[69 N.W. 876]

Burns & Sullivan, W. W. Dodge, and Stutsman & Stutsman, for appellant.

Seerley & Clark and Power, Huston & Power, for appellee.


DEEMER, J.

1. Appellant first complains of the ruling of the court denying a motion for change of place of trial. The case was brought for the September, 1894, term of court, and was continued to the November, and afterwards to the January, 1895, term. At the January term a trial was begun, and during the progress of the trial defendant died. His administrator was substituted, and, upon this substitution being made, plaintiff moved for a continuance. This motion was sustained, by agreement of parties thereafter made, and the trial of the case was resumed, resulting in a verdict for defendant. A new trial was granted, and the case continued to the April, 1895, term. The motion to change the venue was filed April 13, 1895. The statutes of this state provide that such a motion cannot be made after a continuance, except for a cause not known to the affiant before such continuance. Code, § 2591. It would seem that the motion was filed too late, and for this reason was properly overruled. But, if this be not true, the statute provides that the trial court, in the exercise of a sound discretion, must decide whether a change shall be granted according to the very right and merits of the matter. Code, § 2590. It does not appear that the court abused its discretion in denying the motion. The affidavits filed by appellant tending to show prejudice on the part of the inhabitants of Des Moines county were met by an equally large number of counter affidavits tending to show the contrary; and, if there is any difference in the statements, it is in favor of those made for the defendant, for the witnesses making them seem to have had the better opportunity to know of the situation.

2. Just before the commencement of the last trial plaintiff asked leave to file an amendment to its petition claiming interest on its account. The request was denied by the court, and error is assigned on the ruling. The court below was vested with a large discretion in such matters, and, while the rule is to allow amendments, yet to refuse them is not reversible error, especially where, as in this case, no prejudice resulted. The amendment claimed interest on the account from January 25, 1895. The action was commenced and the attachment levied in July, 1894. The jury found that plaintiff's claim was liquidated by the damage resulting from the attachment; hence, plaintiff was not entitled to interest. The ruling, even if erroneous, was without prejudice.

[69 N.W. 877]

Again, the amendment was proposed on the very day the case was called for trial, and the practice of allowing amendments at such a time should not be encouraged.

3. Plaintiff asked the court to submit the following special interrogatories to the jury: “(1) Did the plaintiff, the Union Mill Company, by its president, A. McElhinney, make a fair statement of all the facts within his knowledge to J. F. Burns, an attorney at law, before the writ of attachment was sued out? (2) Do you find, on the case submitted as set forth in interrogatory 1 hereof, that said attorney advised that a good cause of action and a right to sue out the writ of attachment existed?” The request was refused, but the court did submit the following: “(3) Was the writ of attachment directed to be sued out on the advice of J. F. Burns, an attorney at law, after a fair statement of all the facts at the time in the possession of A. McElhinney, president of the company?” To this the jury answered: “No; all the facts were not given.” It seems to us that this interrogatory embodies all the essential facts called for by the two refused, and that appellant had no cause of complaint. The jury clearly answered all material and relevant matters called for by the two interrogatories which were refused. An affirmative answer to interrogatory 1 would not have been a complete defense, as counsel argue. See Acton v. Coffman, 74 Iowa, 17, 36 N. W. 774;Myers v. Wright, 44 Iowa, 38.

4. Complaint is made of the instructions given by the court, and of the refusal to give certain instructions asked by plaintiff. We need not set out the ones complained of. It is sufficient to say that they state the law as it has been announced by this court in numerous decisions, and are singularly free from error or misstatement. The instruction with reference to exemplary damages closely follows the rule announced in Nordhaus v. Peterson, 54 Iowa, 71, 6 N. W. 77, and Hurlbut v. Hardenbrook, 85 Iowa, 606, 52 N. W. 510. The effect to be given advice of counsel was properly set forth, and instruction No. 13, asked by plaintiff, to the effect that the uncontradicted evidence showed that plaintiff had taken the advice of counsel, was properly refused, because there was a conflict on this point. The jury allowed defendant, as a part of the damages, interest on money which came into the hands of the sheriff on garnishment proceedings. This is said to be error, because no claim for such damages is made in the counterclaim. We think the matter is sufficiently covered by the pleading, and need give the matter no further consideration. It is further contended that the court erred, in stating the issues to the jury, in not limiting the recovery of exemplary damages to $2,120.50. This is based upon the thought that defendant asked judgment for $10,000 in all, $7,120.50 of which was actual damages. This contention is fully met by the amendment to the counterclaim which claims but $2,000 actual damages, and in all, both actual and exemplary, $10,000. Complaint is made of the instructions as to the burden of proof. There is no merit in this. The instructions state the rule given by this court in numerous cases. We need not further refer to the numerous objections urged against the instructions. It is sufficient to say that we find no error.

5. It is said that the amount of the damages...

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24 practice notes
  • Amos v. Prom, Civ. No. 571.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 30 Septiembre 1953
    ...1898, 106 Iowa 321, 76 N.W. 706; Boardman v. Marshalltown Groc. Co., 1898, 105 Iowa 445, 75 N.W. 343; Union Mill Co. v. Prenzler, 1897, 100 Iowa 540, 69 N.W. 876, $5,000 exemplary damages permitted where compensatory damages totaled $770.06; Davis v. Seeley, 1894, 91 Iowa 583, 60 N.W. 183; ......
  • Stevenson v. Stoufer, No. 46736.
    • United States
    • United States State Supreme Court of Iowa
    • 5 Abril 1946
    ...survive the death of the wrongdoer either at common law or under our survivorship statute. And in the case of Union Mill Co. v. Prenzler, 100 Iowa 540, 546, 69 N.W. 876, we held that the same rule prevailed at common law where the person wronged was deceased unless the action was commenced ......
  • Gregory v. Sorenson, No. 40973.
    • United States
    • United States State Supreme Court of Iowa
    • 5 Abril 1932
    ...considered. The existence of malice on appellant's part has been fully supported by the record. Union Mill Co. v. Prenzler, 100 Iowa, 540, 69 N. W. 876;International Harvester Co. of America v. Iowa Hardware Co. et al., 146 Iowa, 172, 122 N. W. 951, 29 L. R. A. (N. S.) 272;Welsh v. Haleen, ......
  • Bankers Life & Casualty Company v. Kirtley, No. 16930.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 24 Agosto 1962
    ...Reutkemeier v. Nolte, 179 Iowa 342, 161 N.W. 290, L.R.A.1917D, 273, and $5000 in a wrongful attachment case, Union Mill Co. v. Prenzler, 100 Iowa 540, 69 N.W. Cases passing upon exemplary damage awards which were asserted to be excessive in various tort situations are collected and discusse......
  • Request a trial to view additional results
25 cases
  • Amos v. Prom, Civ. No. 571.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 30 Septiembre 1953
    ...1898, 106 Iowa 321, 76 N.W. 706; Boardman v. Marshalltown Groc. Co., 1898, 105 Iowa 445, 75 N.W. 343; Union Mill Co. v. Prenzler, 1897, 100 Iowa 540, 69 N.W. 876, $5,000 exemplary damages permitted where compensatory damages totaled $770.06; Davis v. Seeley, 1894, 91 Iowa 583, 60 N.W. 183; ......
  • Stevenson v. Stoufer, No. 46736.
    • United States
    • United States State Supreme Court of Iowa
    • 5 Abril 1946
    ...survive the death of the wrongdoer either at common law or under our survivorship statute. And in the case of Union Mill Co. v. Prenzler, 100 Iowa 540, 546, 69 N.W. 876, we held that the same rule prevailed at common law where the person wronged was deceased unless the action was commenced ......
  • Van Wie v. United States, Civ. No. 403.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 3 Abril 1948
    ...the measure of recovery is the reasonable present value of his life to his estate. Union Mill v. Prenzler, 100 77 F. Supp. 48 Iowa 540, 69 N.W. 876; Dwyer v. Chicago, St. P. & O. R. R. Co., supra 84 Iowa 479, 51 N.W. 244, Cerny v. Secor, 211 Iowa 1232, 234 N.W. 193; Shutes v. Weeks, 220 Iow......
  • Gregory v. Sorenson, No. 40973.
    • United States
    • United States State Supreme Court of Iowa
    • 5 Abril 1932
    ...considered. The existence of malice on appellant's part has been fully supported by the record. Union Mill Co. v. Prenzler, 100 Iowa, 540, 69 N. W. 876;International Harvester Co. of America v. Iowa Hardware Co. et al., 146 Iowa, 172, 122 N. W. 951, 29 L. R. A. (N. S.) 272;Welsh v. Haleen, ......
  • Request a trial to view additional results

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