56 Iowa 303 | Iowa | 1881
The facts are intricate, and confusion naturally arises in the mind when an attempt is made to contemplate all in one view in order to determine the rights of the respective parties. If we first determine what rights the respective parties set up and what the law secures to each, the case becomes simple, and no confusion results on account of the conflicting claims of the several parties to the numerous suits consolidated as one. We will proceed in -this manner to the consideration of the case.
II. The defendants in the attachment suits and the intervenor, allege that the attachments were wrongfully sued out and that defendants sustained great damage thereby. For such an injury the law gives the defendants a remedy which they may pursue by counter-claims in the respective attachment suits. The claims for damages are made, and, as at this stage of the proceedings no inquiry can be made into their rights to recover thereon, they must now be regarded as valid claims, and the rights of the parties must be considered as they would be regarded were it admitted that defendants are entitled to recover upon the claims in proper proceedings.
These claims in the hands of defendants are* transferable under our statute, and it is conceded by counsel for plaintiffs, as we understand their arguments, that the claims passed to the assignee under the general assignment. This is the point of the case whereon its decision turns. Now, how may the assignee enforce these claims under the peculiar facts of the case, and what remedy shall he pursue?
The defendants, in their counter claims, insist that they are entitled to recover damages thereon. As we have seen, the claims are transferred to the assignee. It is very plain that if the claims in the hands of the assignee may be enforced in the attachment actions, thereby the plaintiffs’ judgments will be wholly defeated, or reduced in part, or judgments for damages may be recovered against the plaintiffs; in either
The defendants may not be entitled to recover upon the cóunter-claims for the reason that they were transferred by the assignment to the assignee. But the question involving their right's to recover thereon is involved in their counterclaims, which are prosecuted by them in the attachment suits. The assignee insists that the claims for damages were transferred to him by the general assignment. Questions may arise involving the rights of either plaintiffs or defendants to insist that their claims for damages and the debts of defendants should be set off, the one class of indebtedness against the other. But be this as it may, there can be no doubt that the assignee has an interest in the counter-claims. The statute above cited authorizes him to intervene in the actions to the end that this interest may be protected.
III. Counsel for plaintiffs argue that the assignee cannot be substituted in the actions so as to take the place of the defendants. This position is probably correct; but we do not discover that it has any bearings • adverse to the assignee’s right to intervene.
The counsel for plaintiffs admit that the assignee may prosecute an original suit to recover damages for the wrongful issuing of the' writs of attachment. . In such a suit they insist that the defendants thereon may plead counter-claims. This position may be admitted. ■ But they further insist that
Counsel for plaintiffs speak of the assignee’s claim made in his petition of intervention as a counter-claim, and insist that he cannot plead a counter-claim as a defense. We think the intervenor does not so plead his claim. The abstract, without reciting the pleading, shows that the petition of intervention alleges that the assignee has become entitled to rer cover the damages sustained by the wrongful issuing of the attachments, and asks judgment therefor. It is not stated that the damages are pleaded as a counter-claim.
We reach the conclusion that the District Court rightly overruled plaintiffs’ motion to strike out the petition of intervention.
Afkikmed.