8 Iowa 341 | Iowa | 1859
I. The error first assigned is, that the court, refused a continuance at the term when the cause was tried. The record opens with the statement, that “ heretofore, to-wit: on the 28th of May, 1858, an amended petition was filed,” and it appears that the cause had been tried at a former term, when the verdict was against the defendant, but the judgment was arrested, and a new trial granted, and thereupon the plaintiff amended his petition ; and that this was a second trial, and at least a second term, but the record does not show when the action was commenced.
In this state of the case, the defendant claimed the right to a continuance, under the act of 22d of March, 1S58,
II. The plaintiff’ alleges that he offered to give the defendant, as attaching creditor, security from his property, and, among other things, offered to assign him his book of accounts. In order to show what amount was due on the books, and that the persons against whom the accounts stoods, were responsible, he offered one Crawford as a witness, wrho testified that the demands on the books amounted to about $T00 00, and that the debtors therein were responsible men, but he could not then recollect their names, nor the amounts due from them respectively. He could give the names of but three of the persons. The defendant objected to this answer and testimony, and also objected for the reason that the books should be produced. The court overruled the objection, and admitted the testimony, and this is the second error alleged.
The testimony was unquestionably competent, and it was so, either with, or without the books. There wras no necessity for the plaintiff to produce the books, in the first instance ; and if the defendant wanted them, he should take the proper steps to cause them to be brought in. Had lie been refused, on such an application, it might be ground for complaint, but this testimony was admissible without the books. The bill of exceptions does not show in what relation to Drummond, Crawford stood — whether as clerk or othw-ise, nor his means of knowledge. His inability to men
Under the same assignment, the defendant suggests as error, the admission of the writ of attachment, and the officer’s return thereon. The same question was made, and the admissibility of these papers determined, in Raver v. Webster, 3 Iowa, 502; McGinnis v. Hart, 6 Iowa, 204.
The defendant argues that the return does not show a legal levy — a proceeding according to statute; and that, therefore, it is void, and no levy. The defect assigned is, that it does not show that the officer gave notice to the defendant, nor that he gave notice to the person occupying the premises. Passing by the consideration that these matters would not render the attachment void, wTe remark that it would be a strange defense for the creditor to make, that the process which he had sued out and set a going, was not executed in accordance with law, where an attachment dc facto had been made.
III. The third assignment is, that there was error in giving the instructions asked by the plaintiff. These instructions are fifteen in number, and we shall notice them so far only as the defendant refers to them in his argument.
The first was, that if Drummond did refuse to mortgage
Neither this instruction, nor any facts shown in connection with it, leads to the question suggested by defendant’s argument, whether the creditor, having once refused to accept an offer of security or payment, would be precluded from ever making another demand. He argues that it may have been proved so and so; but he should show what was proven. This lie does not do. The difficulty in regard to some of the instructions is, that there is no statement of the testimony.
IY. The fourth instruction was, that “ Stewart’s admissions that Drummond offered to secure, if proven, are conclusive against him, unless qualified in such a way as to detroy their force. It gives Stewart no ground for attachment under this law ; that he sued it out., because he could not make his money out of it, [the security,] as soon as he wanted it, provided the same was reasonably sufficient to- secure or pay the indebtedness sued upon.” The appellant excepts to this, as containing the doctrine, that if lie made
V. Exception is taken to the fifth instruction, also, which is the following: “It is no justification, nor mitigation of damages, that the original indebtedness, or note, was a just claim, and that Stewart recovered judgment on the same. It does not entitle a party to an attachment, simply because his claim is just. Some one of the causes laid down in the statute must exist, or the suing out of the attachment is wrongful.”- It is not stated that the court excluded this fact from the jury, but it was admitted with the above instruction, and we cannot see that there was error in it. The instruction was correct. The fact that the plaintiff’s claim is a just one, does not entitle him to an attachment. The claim may be just, and yet the attachment wrongful, and even wilfully wrong. It is the converse of this proposition, that has weight, where the plaintiff fails in liis action, and then it ha.s weight, according to the circumstances of the case. The attaching plaintiff may believe his demand entirely true, and yet fail; or, he may be correct in this, and yet be wrong, and even malicious, in suing out his attachment.
VI. The defendant then objects to the tenor of the plaintiff’s instructions, generally, nrging that they go to the extent of holding, that the plaintiff is entitled to recover, though the defendant may have had good reason to believe the-facts to be true, which are sworn to, and he cites Raver v. Webster, 3 Iowa, 504. It is true that that case, and Mahnke v. Damon, 3 Ib., 107, hold that the plaintiff’s ground for believing the facts stated to be true, is the true test, but
It may be that the appellant has failed to present his cáse as he designed, in consequence of not causing the evidence to be certified, but we see no cause for reversing the judgnent, and it will stand affirmed.