90 Iowa 661 | Iowa | 1894
I. The attachment, for the wrongful suing out of which this action is brought, issued in a proceeding before a justice of the peace, and the damages in this suit are laid, first, for expenses and loss of time in defending against the attachment; second, for corn taken and destroyed, and third, for exemplary damages. The jury made a special finding under each claim for damage, and gave for the first twenty-five dollars, for the second thirty-five dollars, and for the third two hundred dollars, with a general verdict for two hundred and sixty dollars.
It is said that there was no basis for the proofs as to actual damages, because the records and papers were not put in evidence to show the attachment proceedings, and they were the only competent evidence in the first instance. Such proofs were not necessary, for the reason that the answer admitted such proceedings, and the issuing of the attachment. It is further admitted that the suit was appealed to the district court, and there “decided against the plaintiff in that suit.”
In the same connection it is urged that the testimony as to attorney’s fees was erroneously admitted, as such fees were, in part, for defending the claim as
II. After the trial before the justice in the attachment suit, the defendants in this suit went to the field of the plaintiff, and it is in evidence that they made threats of prosecution against the plaintiff if he “did not quit shucking,” and claimed the property under the attachment, and took at least part of the corn. ■ Such evidence was proper, as showing what was done, and the motive in taking the attachment, whether malicious or otherwise. It is urged that, in the absence of a threat of physical violence, or some “overt act,” the plaintiff should have maintained his possession, and that the mere statements of G-irton that he would take the corn by virtue of the attachment would give no right of action. That is true. The action is not for what was said, but for what was done, for the trespass in taking and injuring the corn wrongfully. We are not prepared to say that an action will not lie for injury to property merely because physical force would have prevented the injury.
III. There are complaints as to some of the instructions given by the court, but the record will not-permit us to consider them. The only exceptions taken- to the instructions are embodied in a motion for a new trial, in words as follows: “The court erred in giving the second, third, fourth, and fifth instructions to the jury.” It may be doubted whether such words amount to an exception. They are nearer the language for assigning error. But if we assume the intention to have them serve as an exception, and thus treat them, there is still a failure to comply with the requirements of the law where the exceptions are taken in a motion
IY. The jury assessed the exemplary damages at two hundred dollars. The award was made under an instruction that such damages were to be allowed where the injury complained of “was inflicted willfully and maliciously,” and that they were given “as a protection to th& plaintiff, and as a salutary example to others to deter them from offending inlike manner.” Thevalidity of the instruction is not in question, and, while the amount of exemplary damages seems large, considering the actual damages, we are not prepared to say, in view of the testimony, that it is excessive. The attachment proceeding seems to have been unwarranted. In fact it seems to have been resorted to more as a means of oppression or extortion than for the preservation of legal rights.
Y. The defendants are M. E. and C. W. Grirton, the former being the wife of the latter. In the district court there was a motion to strike out all the evidence as to damage to corn, so far as the defendant M. E. Grirton was concerned. The ground of the motion is that in the transactions as to the corn, including the suing out of the attachment, O. W. Grirton was the
VI. The appellants asked for a new trial on the ground of newly discovered evidence, which was refused, and properly so, for the new testimony was but cumulative. The verdict has full support in the evidence, and other important questions are disposed of in these considerations. The judgment is affirmed.