Wright v. Waddell

• Decision Date: 14 October 1893
• Parties: A. WRIGHT, Appellant, v. GEORGE WADDELL, Appellee
• Court: Iowa Supreme Court

56 N.W. 650

89 Iowa 350

A. WRIGHT, Appellant, v. GEORGE WADDELL, Appellee

Supreme Court of Iowa, Des Moines

October 14, 1893

Appeal from Wright District Court.--HON. S. M. WEAVER, Judge.

ACTION aided by attachment to recover an amount alleged to be due the plaintiff for pasturage, grain, and feed for horses and cattle owned by the defendant. The defendant denied the indebtedness alleged and pleaded counterclaims. There was a trial by jury, and a verdict and a judgment for the defendant. The plaintiff appeals.

Affirmed.

J. C Moats and Nagle & Birdsall, for appellant.

McGrath & Bryan, for appellee.

OPINION

ROBINSON, C. J.

The plaintiff claims that in the years 1890 and 1891 he received from the defendant, to pasture, feed, and keep for hire, one more and her colt and two cows; that he pastured, kept, and fed them until about the thirteenth day of September, 1891 that the reasonable value of the pasturage, keeping, and feeding was the sum of one hundred and twenty-eight dollars. In his original petition he asked for the issuance of a writ of attachment against the property of the defendant, and as ground therefor stated that the defendant had absconded so that ordinary process could not be served upon him, that he was a nonresident of this state, and that he was about to convert his personal property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors. He also stated that his claim was for keeping, feeding, and pasturing stock, and as a lien therefor he asked an attachment. He filed in the office of the clerk an attachment bond, which was approved. A writ was issued, which was levied upon the property, on account of which the plaintiff seeks to recover. The defendant denies the allegations of the petition, and avers, by way of counterclaim, that the plaintiff is indebted to him for the use of the mare, the cows, a mower, and a wagon, for corn, and two hogs sold, in the sum of one hundred and forty-six dollars. The defendant asks judgment for that amount, and for the sum of one thousand dollars on account of the wrongful and malicious suing out of the writ of attachment. In an amendment to his petition, made after the answer was filed, the plaintiff alleged that when the action was commenced he was, and is now, entitled to a lien on the stock for his charges; that the stock has been, and is, in his possession; that his attorney, in preparing the petition, used a printed form, and by oversight and mistake omitted to erase therefrom the parts alleging general grounds for an attachment, and by mistake they were permitted to remain in the petition, and he amended it by striking therefrom the parts so left therein by mistake. It does not appear that any answer to the amendment was filed. The jury found that the attachment was issued maliciously, and returned a verdict in favor of the defendant for two hundred and twenty-five dollars. Judgment for that amount and costs was rendered in his favor.

I. During the time in controversy the plaintiff owned a farm upon which he resided, although he was engaged personally in conducting business in a town in the vicinity. In September, 1890, the defendant commenced working for him on the farm for the term of one year at an agreed sum of money per month and house rent. The defendant moved upon the farm during the latter part of September, and kept thereon, during part of his term of service, the stock described and some hogs, all of which remained in his possession, and were fed and cared for by him. Some of it was kept in the pasture of the plaintiff a portion of the time, and was fed in part with grain and hay which belonged to him, and was kept in his yards and stables. This action was commenced on the last day of the defendant's term of service, and the stock on account of which the plaintiff seeks to recover was taken, and has since been held, under the writ of attachment. The court charged the jury as follows:

"Fifth. As to the counterclaim based upon the attachment, you are instructed that under the undisputed facts in the case the issuance of the writ of attachment was wrongful, and that plaintiff had no lien upon the defendant's stock. If then, you find from the evidence that in suing out said attachment the plaintiff acted maliciously, defendant will be entitled to recover such...