Welsh v. Haleen
| Decision Date | 19 November 1912 |
| Citation | 157 Iowa 647,138 N.W. 502 |
| Parties | WELSH v. HALEEN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Boone County; Robert M. Wright, Judge.
The facts are stated in the opinion. Affirmed.
Goodykoontz & Mahoney, of Boone, for appellant.
D. G. Baker, of Boone, for appellee.
[1] The plaintiff brought this action on an account claimed to be due from the defendant, who was for several years a tenant on his farm. The action was aided by a general attachment. The defendant filed counterclaims for sums said to be due him on account, and for the wrongful suing out of the attachment. The case was tried to a jury, and a general verdict was returned for the defendant upon which judgment was entered. The plaintiff appeals.
The plaintiff's account amounted to $261.75, and of this sum $100 was claimed for feed furnished to two colts that defendant had kept on the place for a time before the termination of his tenancy. The defendant counterclaimed on an account amounting to $77.68, and in a separate counterclaim asked damages for the wrongful suing out of the writ of attachment. Defendant admitted in his answer that there was due the plaintiff on his account the sum of $144.84, and plaintiff admitted defendant's account to the extent of $9.69. The defendant's original counterclaim for the wrongful suing out of the attachment was not based on the attachment bond, and, after the close of the evidence, the plaintiff moved for a directed verdict on that part of the case for the reason above stated. Thereupon, the court told defendant's attorney that he might amend, and he did so, whereupon the motion to direct was overruled. There was no abuse of the court's discretion in the matter, and the plaintiff does not appear to have been prejudiced by the indulgence. Permitting the amendment operated to give both parties an opportunity to submit their claims to the jury, and was in the interest of justice to both.
Some other minor matters are complained of, but we see nothing of a nature requiring more specific treatment, and we shall, therefore, discuss the grounds upon which appellant evidently relies for a reversal.
[2] The most serious complaint is made of instruction No. 15, wherein the jury was told that, if it found that plaintiff had no reasonable cause to believe that either of the grounds alleged for attachment were true, then, in such case, the jury would have a right to infer that the attachment was maliciously sued out. Appellant's principal contentions at this point are that the instruction did not state the correct rule of law, and that, if it did, it placed the burden, under the record, on plaintiff to show want of malice. The rule stated is in harmony with Ahrens v. Fenton, 138 Iowa, 559, 115 N. W. 233, and the cases...
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