Reed v. Chubb Brothers, Barrows & Co.

9 Iowa 178 | Iowa | 1859

Stockton, J.

The statute in relation to set-off, provides that the defendant may set off against the plaintiff’s demand, any claim held by him at the time of the commencement of the suit, which would have been the subject of an action against the plaintiff. The question in this case is, whether a cMm for damages sustained by reason of the wrongful suing out of a writ of attachment, is a claim held by defendant at the time the suit is commenced, in the sense of the statute, and may be pleaded by way of set-off in the oifigi-nal suit.

The suit is deemed, for some purposes, to be commenced by filing the petition in the District Court. Hogan v. Burch, 8 Iowa 309. Strictly, it is commenced by the delivery of the original notice to the. sheriff, or by the actual service thereof by some other person. Code, sec. 1663. It may thus happen that the attachment bond is filed, and the writ Of attachment. issued, after the action is to be deemed, in stiictness of law, commenced. So, it is provided that the proceedings in attachment, are independent of the ordinary proceedings, in the suit, and only auxiliary thereto. They may be commenced by separate petition, subsequent to the commencement of the action. Where this is the case, the claim for damages sustained by reason of the wrongful suing out of the writ, is not a claim held by the defendant, at the commencement of the suit, and cannot be pleaded by way of set-off in the principal suit.

Where, however, the affidavit for attachment, and the bond, are filed, and the writ sued out, at the commencement of the action, if the writ is wrongfully sued out, any damages sustained by the defendant therefrom, constitute “ a claim held by him at the commencement of the suit,” in such a sense that the same may be set off against the plaintiff’s demand, in the same action. He need not wait until the principal suit is determined, before bringing suit on the attachment bond. Code, sec. 1854. The breach of the bond consists in the wrongful suing out of the writ; and whatever damages have resulted to the defendant therefrom, are to be deemed a claim held by him at the commencement of the suit, and filing of the bond, when these are concurrent acts; and may be set-off at the time, as well as after the termination of the attachment suit; and in the same suit, as well as in a separate action on the attachment bond.

Tho demurrer to the plea of set-off should have been overruled.

Judgment reversed.