It is somewhat difficult to .say that the issues were not fully stated to the jury, and we are unable to understand why the jury were referred to the pleadings for the issues. It has been held that this constitutes reversible error. Fitzgerald v. McCarty, 55 Iowa, 702, and cases cited.
If it be conceded that the issues were fully stated by the court, how can it be determined, as the jury were invited or directed to examine the pleadings for the purpose of ascertaining what the issues were, that they did not do so, and conclude that the issues had not been accurately stated by the court. It is improper to direct the jury to the pleadings for the purpose of ascertaining what is or is not admitted or denied. It is the province of the court to determine the issues, and the duty of the jury in this respect to follow the direction of the court. Because of the full statement of the issues made by the court, some of us have doubts whether, in fact, there was prejudicial error in referring the jury to the pleadings, when all the instructions bearing on this question are considered. Therefore, no determination of the question is made; but we have deemed it proper to say this much, because the case must be reversed on other grounds, and a new trial had.
There were also attached two colts, which were subject to a prior mortgage, under which the colts were taken from the sheriff and sold. The proceeds, after satisfying the mortgage and costs of . sale, were paid to the sheriff, and the same is held by him under the attachment.
There was also attached a yearling colt and a heifer, which, as we understand, were still in the sheriff’s hands at the time of the trial. The court instructed the jury as follows:
“ 11. If you find that the attachment was not wrongfully sued out, you need not inquire further as to defendant’s counter-claim and the damages claimed thereunder.
“ If the attachment was wrongfully sued out by said L. M. Small, then defendant is entitled, at least, to such actual damages as he has proved in the case. The actual damages would be the actual loss sustained by defendant by reason of the levy of the attachment, as shown by the testimony.
“ If said property levied on. was sold or disposed of by the sheriff, defendant’s damages would be the fair cash value of the same when wrongfully levied on and taken, or the fair cash value of defendant’s interest in said property, with six per cent interest from the time of the levy.
“ In awarding actual damages, your aim should be to compensate the party injured for actual 'loss directly resulting from the wrongful acts complained of.
“ 11-J. If you find that the attachment was wrongfully sued out, and that defendant is entitled to damages, the measure of his damages upon the property levied on and still in the hands of the sheriff is the loss sustained by defendant by reason of being deprived of the use of said property since the*369 levy, and any depreciation in value of the same; and as to the property seized and sold by the consent of the parties, while plaintiffs should be charged with the cash value at the time of the seizure, they are entitled as a credit to the net cash in the hands of the sheriff, after paying costs and expenses resulting from the sale of said property.”
As applied to.the facts in this case, these instructions or paragraphs of the charge, we think, are erroneous. First, as to the mortgaged property. It has been held that the mortgagor of personal property has no interest therein which can be levied on and sold under execution. Gordon et al. v. Hardin, 33 Iowa, 550. "Whether this fact has any bearing on the question as to what damages the defendant was entitled to recover, was not presented to the court below; and we shall determine the case as it was tried there, and merely mention the fact above stated, so that what we may say will not be misunderstood. The two colts, it will be assumed, were rightly taken under the attachment, but they were taken from the possession of the sheriff' under the mortgage, which was the prior lien. They were rightfully sold under the mortgage, and if at such sale they did not bring their full value, the plaintiffs are not responsible therefor. No act of theirs induced the sale, and, therefore, they cannot be made liable in damages for any loss the defendant may have sustained thereby. We think, under the circumstances, and as the case was tried, the jury should have been specifically instructed that, as to this property, the only damages the defendant was entitled to recover was the amount of money paid the sheriff', after satisfying the mortgage, with six per cent interest thereon. If the defendant was entitled to the possession of the colts, and was deprived of possession by the taking under the attachment, there is no evidence of the value of the use of the colts after they were taken under the attachment, and prior to the taking under the mortgage.
There is no evidence tending to show that the colts and heifer not sold by the sheriff had depreciated in value, or that
The statutory grounds for an attachment are stated in sec. tion 2951 of the Code, and if these are not true, then reasonable attorney fees are to be allowed. It is true, if there was no debt, the attachment must be regarded as having been wrongfully issued, and the defendant in such case is entitled to the damages sustained. But we do not think the allowance of attorney fees stands precisely on the same footing. If it had been the intent of' the legislature to give fees for the trial of the whole issue, if the attachment was wrongfully sued out, we think it would have been so said in words that could not be misunderstood.
The action for the supposed debt can be brought, whether there is ground for the attachment or not. The attachment is an auxilliary proceeding, and may be commenced when the action is brought, or afterwards.
The attorney lee is allowed only when it is found there was no ground for the commencement of such auxilliary proceeding. We think the court did not err in mailing the allowance for attorney fees.
Affirmed on defendant’s appeal.
Reversed on plaintiffs’ appeal.