Hamill, Ralston & Co. v. Phenicie

9 Iowa 525 | Iowa | 1859

Woodavard, J.

The amount SAforn to authorizes the attachment of property, to the amount of $1752.75, and after a levy to the extent of $449.22; the first Afrit Avas returned, and subsequently a second Afas issued. On motion of the defendant, the court set aside this second Afrit and attachment, from which order the plaintiffs appeal. The laAv alloAvs separate Afrits to issue in different counties, either simultaneously or successively, and ave see no good reason why they may not so issue in the same county. Property may be found after the return of a first writ, and it is but reasonable that the party should be empoAvered to take it. This does not affect the sureties in the bond. They have given bond for an attachment Afhich may amount to $1752.75, and it is immaterial to them by Afhat number of Afrits this is effected. It is but one attachment, in legal sense. Their security is against a Avrongful suing out of the Avrit, and the Afrong, if there be any, is not augmented by a second one. It was complete when the first Afas issued, if it exists at all. The second should refer to the preceeding one, shoAfing that it had issued and the amount taken upon it; but this relates to the manner only, and the regularity of the proceedings. We think the court erred in setting aside the second Avrit.

But the defendant moved to quash the entire attachment, because the bond Afas not in such a penal sum as the laAv required. The amount sworn to Avas $1168.50 and the law allows an attachment to the extent of fifty per cent in addition to the sum so sworn to, which would make it $1752.75, and the bond is to be in double the value of the property sought to be attached, which would be $3505.50, whilst it is, in fact, in the sum of $2500.00 only. In the case of Churchill et al. v. Fulliam, 8 Iowa 45, this court held that there was no discretion on this point, and that the bond must be in double the amount ascertained as above, otherwise it did not comply with the law. It follows that the' decision overruling the motion was erroneous.

Another point in the case is the following: The defendant demurred to the petition upon the grounds, first, that it does not set forth a substantial cause of action; second, that no bill of particulars is attached, and that it blended in one count several causes of action. This demurrer was sustained, and the plaintiffs amended by adding counts for the same sum due as upon an account stated, upon a settlement had between them, and for a balance agreed upon. The defendant then moved to strike out this amended petition, and also moved for judgment. Both these motions were overruled. He urges that the plaintiffs have not amended in the matters which constitute the grounds of the demurrer which was sustained. It does not appear upon which ground the court sustained the demurrer, or whether upon all. The petition was not subject to the third cause of demurrer, but it was to the second, the bill of particulars being too general. This consists of eight charges, of different dates, for “merchandise as per bill rendered.” But we cannot say that the court sustained the demurrer to this, although it is altogether probable. Then as to the first cause, the plaintiff ’s did amend, and this amendment did not introduce new causes of action, but stated the saige in different modes. These modes of statement, under the forms of pleading in use before the Code, have always been considered consistent with the identity of the cause of action, and we cannot give the pleading a more rigid construction than when the former and more precise rules applied to them.

The plaintiffs, then, did amend to some extent, and if the petition was still defective, it was not a sufficient cause for striking it out, nor for rendering judgment against him; and in refusing to do so the court did not err. If it appeared that the court held the petition bad for a certain cause, and the amendment did not cover it, then the amendment might be rejected. Thus, if we could see that the petition was held insufficient for want of a proper bill of particulars ; this not being made better, the amended petition might be set aside. But it does not so appear. The defendant should have demurred to the amended declaration, or moved for a more specific bill of particulars.

Another objection, however, to the amended petition, made by a motion to reject it, is, that it is not sworn to, whilst the original is, and prays an attachment. This objection, according to our view, is not a valid one. The amendment is not to that part of the petition which states the ground for, and asks the attachment. Nor does the amendment change the ground of the action, nor introduce a new cause of action, nor claim a greater amount. It is only a now statement of the same cause of action. For those reasons we do not perceive any grounds for requiring it to be sworn to, and therefore cannot say that the court erred.

These are the questions made upon the appeal, and the cause appears to have been brought up upon these interlocutory proceedings. Believing that there was error in regard to two of them, the judgment is reversed, and the cause is remanded.

Reversed.