152 Iowa 278 | Iowa | 1911
Lead Opinion
Defendant Chirurg brought action against the plaintiff for an accounting, etc., and, alleging that defendant in the action was a nonresident of the state, she (defendant) secured a writ of attachment to issue, which was levied upon certain real estate belonging to. plaintiff herein. Various of her debtors were garnished, as also was her agent living in Iowa. The nature of the main action, or one of a series of actions, will he seen in a case which heretofore reached this court, entitled Chirurg v. Ames, 138 Iowa, 697. Suffice it now to say that plaintiff in that action claimed that defendant, plaintiff in this suit, held title to the real estate attached, or some of it, in trust; that she was the equitable owner thereof. She also asked an accounting from the defendant, and further claimed to be entitled to the sum of $1,800 as rent for some Boston property which Mrs. Chirurg claimed to own. In this original action plaintiff herein filed a general denial and also pleaded a counterclaim for several hundred dollars. It should be said that the attachment was not sued out until some time after the original action was commenced, and after plaintiff herein had employed attorneys to defend the suit and look after her interests. No counterclaim was filed for damages growing out of the attachment in the main action. The Title Guaranty & Trust Company of Scranton, Pa.,
The main action was tried and Mrs. Chirurg’s petition was dismissed, and Mrs. Ames’ counterclaim was also disallowed. This was, of course, a conclusive finding that nothing was due the attachment plaintiff when the attachment suit was commenced. The attorney’s fees claimed, as well as expenses incurred, were for defending the main action, and not for securing the release of the attachment and the garnishments, for the statutory grounds for the attachment were true, as alleged. The attachment, if wrongful, was because there was no debt due from the attachment defendant, and the main question here is, May an attachment defendant in such cases, in an action on the bond, recover such items? This is not an action for malicious prosecution, but is upon a bond conditioned as fol
The statute of the state with reference to such actions reads as follows: “In an action on such bond, the plaintiff therein may recover, if he shows that the attachment was Avrongfully sued out, and that there was no reasonable cause to believe the ground ■ upon which the same was issued to be true, the actual damages sustained, and reasonable attorney’s fees to be fixed by the court; and if it 'be shown such attachment was sued out maliciously, he may recover exemplary damages, nor need he wait until the principal suit is determined before suing on the bond.” Code, section 3887.
Other statutes relating more or less to this subject are as follows: “If it he,subsequent to the commencement of the action, a separate petition must be filed, and in all cases the proceedings relative to the attachment are to be deemed independent of the ordinary proceedings and only auxiliary thereto.” Code, section 3877. “If the plaintiff’s demand is founded on contract, the petition must state that something is due, and, as nearly as practicable, the amount which must be more than five dollars in order to authorize an attachment.” Code, section 3880. “If the demand is not founded on contract, the original petition must be presented to some judge of the supreme, district or superior court, who shall make an allowance thereon of the amount in value of the property that may be attached.” Code, section 3882. “The fact stated as a cause of attachment,
Neither the Code of 1851 nor the Revision of 1860 contained this provision now found in section 3887 of the present Code: “And that there was no reasonable cause to believe the ground upon which the same was issued to be true.” This clause was first introduced into the Code of 1873, and decisions under prior Codes are of no consequence in solving the proposition here presented, unless it be, as appellant contends, that this proviso is simply declarative of the law as it theretofore existed. . But, as pointed out in Dickinson v. Athey, 96 Iowa, 363, this is not true. In that case the change in the statute was noted, and comment made thereon. Indeed, we think there can be no room for doubt upon this proposition. We may then eliminate all decisions rendered prior to the adoption of the Code of 1873. Before taking up the question as to the recovery of attorney’s fees and. expenses, we shall first determine whether any damages are shown to have been suffered because of the attachment of the real estate and the running of the garnishments.
¡This same question was before the court in Nockles v. Eggspieler, 53 Iowa, 730, and the court there said: “Code, section 2961, authorized judgments for attorney’s fees in such cases. It is in the following language: ‘In an action on such bond, the plaintiff therein may recover if he shows that the attachment was wrongfully sued out, and that there was no reasonable cause to believe the ground upon which the same was issued to be true, the actual damages sustained, and reasonable attorney’s fees, to be fixed by the court.’ The point made by counsel is this: The provision quoted authorized judgment for attorney’s fees when it appears that the attachment was wrongfully sued out, and that there was no reasonable cause to believe the ground upon which it was issued to be true. The special finding of the jury is that the writ was wrongfully issued. . . . It will be observed that both of these conditions must be found, in order to authorize the plaintiff to recover at all. Such is the express language of the statute just quoted. Plaintiff, by the general verdict, did recover. We must presume that the jury found all the facts necessary to authorize recovery;- that they found the writ was wrongfully issued. The general verdict, therefore, supports the decision of the court as to the attorney’s fee. ... It will be observed that under the section of the Code above quoted, and preceding sections, a right of action is given upon the attachment bond. Unless the case contemplated hy these provisions is made by the proof, the plaintiff can not recover. He must show that the attachment was wrongfully sued out, and that there was no reasonable cause to believe the ground upon which it was issued, as provided in section 2961. It" will not, therefore, do to say that the plaintiff could have recovered, independent of the section, for actual damages.
If we should assume, as counsel for appellant would have us do, that the existence of an indebtedness is one of the grounds for attachment, then to be logical and consistent the holding would necessarily be that attorney’s fees for an attorney in defending the. main suit should be taxed under Section 3887, for the only method ■ whereby a defendant may show that no indebtedness existed is to make defense to the main action. But unfortunately for appellant’s position all the cases decide that no recovery can be had of attorney’s fees in an action on the bond for defending against the main suit. The authorities, without any dissenting note, all hold that an action will lie for the malicious prosecution of an attachment proceeding independent of the bond. In any event, it would not do to say, in an action on the bond, that if plaintiff had reasonable ground to believe that he had a valid cause of action the attachment is not -wrongful. If the jury finds that no cause of action in fact existed, the wrongfulness of the suing out of the writ is thereby conclusively established. It follows that these conclusions are the only logical ones that can be reached, if we are to consistently follow the statutes and our prior decisions. It is to be admitted that some of the cases heretofore decided can not be entirely reconciled with these conclusions. We shall not attempt to review these cases.
It is enough .to state our conclusions, and without more we close by saying that no error appears, and the judgment must be, and it is, affirmed.
Concurrence Opinion
(specially concurring). — I concur in the result announced in the foregoing opinion and in the greater
I. I think that an action can be maintained upon an attachment bond for maliciously suing out an attachment. This is the clear implication of the Code, section 3887, which provides for exemplary damages in such 'a case. I see no occasion, therefore, for the suggestion that in an action on the attachment bond, the measure of damages is less than it would be in an action independent of the bond, for abuse of process, or malicious prosecution. The ■statutory action on the bond is, to my mind, comprehensive enough to enable the plaintiff to recover his full remedy; and a judgment therein would operate as á bar to another action, independent of the bond, as for abuse of process, or malicious prosecution.
II. A part of the argument of the opinion is predicated upon the theory that, if the alleged statutory ground of the attachment is in fact true, such fact operates as a complete defense to an action on the bond, at least so far as attorney’s fees are concerned. I am not prepared to assent to this view. The ground of attachment specified in the original suit was that the attachment defendant was a nonresident of the state. This ground being concededly true, does it necessarily follow that the attachment defendant could not recover on the attachment bond under any circumstances, even' though the attachment was in fact wrongfuly sued out for want of a valid cause of action ? I think not. It is true that the existence of a cause of action in favor of the plaintiff is not one of the grounds of attachment enumerated in the statute. It must be said, however, that the existence of a cause of action is necessarily inherent in every ground of attachment alleged by an attaching plaintiff. The statue which provides for grounds of attachment is operative only in favor of an existing cause of action. Theoretically, if there be no cause of action, there can be no ground of attachment. This was
I agree that there can be no recovery on the bond of attorney’s fees for defending the main action. I agree also that the plaintiff herein has not shown any actual damages resulting to her, nor expense incurred by her, by reason of the attachment, as distinguished from her defense of the main controversy. I agree also that, for aught that appears in this record, the defeat of the attachment plaintiff (defendant herein) in the original suit may have resulted from an allowance of a part of the counterclaim in that case. Manifestly the failure of the attaching plaintiff to maintain his cause of action as against a counterclaim would not render wrongful the suing out of an attachment. I think