27 Iowa 257 | Iowa | 1869
' Let us look at the facts for a moment. The affidavit and petition for the attachment are not very clear in their averments ; that is to say, it does not very conclusively appear whether the writ is asked for a debt due or one not due. The averment of “ intent to defraud ” is found in the petition, which is necessary to obtain an attachment when a debt is not due, and not necessary, if it is due, at the time the action is commenced. In other words, if the proceeding is under § 3114 of the Revision, the fraudulent intention need not be averred. If under § 3118, it must be stated if the party relies upon an intended disposition of the property. If the affidavit was good under ■the last section, or if the plaintiff was proceeding thereunder, then there remains no question as to his right to a judgment (the proof warranting it of course) after the demand was due. This right is clear enough under
The liberality of the provisions of our statute on the subject of amendments is well known .and understood.
The rule is to allow the exception to refuse amend ments. This is clear enough from numberless provisions and has been often announced in substance. Seevers v. Hamilton, 11 Iowa, 66, and the many cases there cited; and see also Draper v. Ellis, 12 id., 316; Nettman v. Schramm, 23 id. 521; Williams v. Miller, 10 id. 344; Fulmer v. Fulmer, 22 id. 230, and cases there cited; Crawford v. Paine, 19 id. 172; Miller Pl. & Pro. ch. 17, p. 269, et seq.
I do not say that the right to amend is an absolute one. In this case, however, the request was reasonable; defendant’s position was necessarily a surprise upon plaintiff; the refusal worked most manifest prejudice; plaintiff was ready and proffered to submit to terms as to costs, etc., (and these terms the court could impose without such offer). And under such circumstances I am clear that the amendment should have been allowed.
This opinion, it is understood, has the approval of Cole, J. The Chief Justice (Dillon) and Justice Beck, without committing themselves to the foregoing views, concur in the conclusion reached, that the judgment should be reversed upon the ground that plaintiff’s right of action, by the terms of the contract, and under the facts proved, was complete at the time the action was commenced; and, as a consequence that the instruction
Reversed.