Crouch v. Crouch

9 Iowa 269 | Iowa | 1859

Wright, C. J.

Upon what ground this demurrer was sustained, we cannot see. Several causes are assigned, which may be briefly noticed. And first, it is assigned, that the original notice is in the name of plaintiff and his wife, and the petition in the name of the father alone. This objection, if a good ground of demurrer, is not sustained by the record. And the same may be said of the third and fifth grounds of demurrer. The second ground is that the petition does not state where, nor in what state the contract was to be performed. This was not necessary. The action is not local. Fourth, the petition does not show a substantial-cause of action. This manner of demurring is too general, and should have been disregarded. It does not specify or set forth the specific ground of objection to the pleading demurred to, as required by the Code, section 1954.

Looking alone at the papers before us, the motion to dissolve the attachment was properly sustained. It seems that the attachment was issued at the commencement of the action, and the amended petition. (and the only one before us,) was filed sometime afterwards. From this, it only appears that at the time of filing it, defendant was a non-resident of the State. This was not sufficient to sustain an attachment previously issued. If the former or original petition, showed the same fact, then so far, the motion should have been overruled. If it did not, then it was properly sustained.

The objection that the proceeding is in equity, and that an attachment does not lie in such cases, is untenable in law as well as fact. The action is at law and not in equity; and if in equity, the plaintiff, for proper cause shown;, wmuld be entitled to an attachment, precisely as at law. All of the other causes stated in the motion (except the 4th) are of this nature: “ There was no legal petition on file at the time the attachment issued, authorizing the same.” This manner of assigning causes, as in the case of the demurrer, is entirely too general. Danforth et al v. Carter & Mry, 1 Iowa 230. The fourth causéis that there is no sufficient affidavit. If this relates to the amended petition, it is true as to the defect above pointed out, but not in any other. If to the original petition, we cannot judge of its sufficiency, as it is not before us.

The cause will be reversed, with directions to overrule the demurrer, and to take such further action upon the motion as is consistent with this opinion.