138 Iowa 559 | Iowa | 1908
In this case defendant need not have interposed his claim on the attachment bond by way of counterclaim in plaintiff’s action, but he might have sued independently thereon. If after defeating plaintiff’s action on the note by a tender, or satisfying the judgment recovered on the note and for breach of covenants in the lease by paying the balance of the judgment rendered against him in plaintiff’s action, he had then brought action on the bond, it would have been no answer to such action that he might have interposed his claim in the original action by way of counterclaim, and thus have defeated recovery of any judgment by plaintiff. The tender was not of a balance of indebtedness, but specifically of the face of the note. If after paying into the hands of the clerk the money due on the note and before judgment, plaintiff’s right of action had in some
For the reason pointed out in the first portion of this opinion, the judgment of the trial court is reversed, and the case is remanded for further proceedings.— Reversed.