Barton v. Smith

7 Iowa 85 | Iowa | 1858

Wright, C. J.

It is urged that the judgment is for a larger amount than is claimed in the petition. The peti. tion claims $204,75, (the amount of the note), with interterest and costs. Under this, plaintiff could recover interest from the time of the commencement of the suit. Haven dé Buck v. Baldwin, 5 Iowa, 503. And not more. In this case it is not shown when the suit was commenced, and we cannot, therefore, say that the amount is too large. When tlie original notice was placed in the hands of the officer for service, does not appear. The error is therefore not affirmatively shown.

The next error assigned is, that the note was improperly received in evidence. It is shown that a note was offered in evidence, and that defendant objected because of a variance; blit whether the objection was sustained, or overruled, does not appear. The question made by the assignment, does not therefore arise upon the rocord.

Defendant, in his answer, relied upon certain proceedings in attachment against the payee of the note, in which he (defendant) liad been summoned as garnishee, and answered. The bill of exceptions states, that “ defendant referred to the transcripts attached to his answer for his evidence — same bei ng exhibits A, B and C, hereto attached— which was all the evidence offered.” From these transcripts, it does not appear that the plaintiffs in the attachment proceedings, ever obtained judgment against the payee of the note, or that they over attempted to prove any demand against him. "Without a recovery against the debtor, there could be no judgment against the garnishees, and these transcripts were therefore properly disregarded. Code/ see. 1873.

J udgment affirmed.