Bundy v. McKee

29 Iowa 253 | Iowa | 1870

Weight, J.

l. attachment : cause. First, as to plaintiff’s appeal. , The attachment was properly dissolved, and this, whether the court ruled correctly or not, in striking the amended petition. The gi’ound as originally stated was insufficient. This is scarcely denied. The proposition to amend concedes it. Then, too, it was so held in Mingus v. McLeod, 25 Iowa, 452.

2_Amena-ment The defect was not cured by the amendment. For this alleges that defendent was then (January 1, 1870, two m°nths after issuing the writ, and after it was originally prayed), about to dispose of or remove his property, etc. Plaintiff was not seeking a new attachment, but to sustain and uphold that already issued. The affidavit should therefore have shown that the cause alleged existed at the time the action was commenced, or the writ issued. This is plain enough in reason and upon principle, and such are the authorities. Wadsworth & Wells v. Cheeny & Wilson, 10 Iowa, 257; Cronch v. Cronch, 9 id. 269, and Gourley v. Carmody, 23 id. 212, relied upon by plaintiff, in no manner bear upon the point here ruled.

Second, as to defendant’s appeal. His motion was to strike out one count of the petition. Plaintiff could decline to thus strike out either count, and the court could not compel her to elect. She had at least her election to strike out, or go to trial and undertake to prove as many causes of action as there were counts in her petition. Rev. § 2934. The statute protects the opposite party sufficiently, by giving the court power to adjudge costs.

The judgment below is affirmed as to both appeals, each party paying half the costs herein.

Affirmed.