Patterson v. Stiles

6 Iowa 54 | Iowa | 1858

Stockton. J".

— The only question is, whether the district court properly overruled the motion. The appellants have cited us to the case of Currier v. Cleghorn, 3 G. Greene, 523, in which, as they claim, the question has been determined by this court. That was a suit against partners, on a promissory note, made by the firm. The cause alleged for the writ of attachment, applied to one of the defendants only; the writ was asked against his separate estate, and was issued and levied accordingly. The court held, that as it was not shown that the other member of the firm was insolvent, nor that the partnership assets -were not sufficient for the payment of the debts, the writ could not issue against the private property of one of the members of the firm; and that where suit is brought on a joint note, the affidavit for the writ of attachment must bo against both defendants, or some good cause shown in the affidavit why it could not be so made, in order that the court may be informed why the plaintiffs proceed against the private property of one of the defendants only. The court held, by implication, at least, as we understand it, that if it appears that one of the members of the firm is insolvent, or that the partnership assets are insufficient to pay the debts of the firm ; or if any good reason is shown why the affidavit for the writ cannot be made against both of two joint obligors, the writ may issue against one of them only. It is not, therefore, necessarily a sufficient ground for quashing the writ, that it does not follow the action; or that the suit is against two, and the writ against one of the defendants only. Nor is it a sufficient reason for quashing the writ, that the attachment bond does not follow the action, in that it is given to one, and not to both, defendants. The case of Currier v. Cleghorn, supra, is authority for the ruling of the district court, that the bond is to be given to the person against whom the writ issues. It is not set down in the motion, as a ground for quashing the writ, that no cause is shown in the affidavit why the same is not against both defendants, nor why the plaintiffs seek to proceed by attachment against one of the joint obligors only. Whether this objection, if made in the district court, would be sufficient to require that the motion to quash should be sustained, we do not deem it necessary to inquire. It is sufficient that the court did not err in refusing to quash the writ, for the reasons urged. This court has held in Danforth, Davis & Co. v. Carter & May, 1 Iowa, 552, that a party is not to be surprised in this court, by new objections and new issues, not made in the district court, upon defects of which he has not beer}, advised by motion or otherwise, and which it would have been in his power to remedy, had objection thereto been taken in proper time and manner.

Judgment affirmed.