Rumsey & Co. v. Robinson & Atherton

58 Iowa 225 | Iowa | 1882

Day, <T.

1. PRACTICE : demurer: time of filling. I. The appellants insist that the court erred in overruling the motion to strike the demurrer from the files, Section 2636 of the C.ode provides: “Each party shall demur, answer, or reply to all subsequent pleadings, including amendments thereto and substitutes therefor, before noon of the day succeeding that on which the pleading is filed.” Section 2638 of the Code provides: “ The court may extend the time of filing any pleading beyond that herein fixed.” It was clearly within the discretion of the court to extend the time of filing the demurrer. It is said, however, that the demurrer was filed without extension of time, and without leave of court. But when the court overruled the motion to strike the demurrer from the files, it in effect extended the time and granted leave to file the demurrer. This question is definitely settled by Williams v. The Niagara Fire Ins. Co., 50 Iowa, 561.

2. COUNTER-CLAIM: plaeding: demurrer. II. We deem it necessary to determine only the fourth ground of demurrer, “ that said amendment does not show that defendants were the owners of said cause of action at the time the suit was brought or commenced.”

Section 2659 of the Code provides: “Each counter-claim must be stated in a distinct division, and must be * 'x' 3. Any new matter constituting a cause of action in favor of the defendant, or all of the defendants, if more than one, against the plaintiff, or all of the plaintiffs, if more than one, and which the defendant or defendants might have brought when suit - was commenced, or which was then held, either matured or not, if matured when so plead.” It is essential under this provision, that the cause of action pleaded as a counter-claim should have been held by the defendant at the time when the suit was commenced, in which the counterclaim is interposed. In Reed v. Chubb Brothers, Barrows, & Co., 9 Iowa, 178, it was held that “when 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.” The provisions of the statute under which this decision was announced, were substantially the same as now. This decision, however, applies to a case where the right of action for damages for the wrongful suing out of the attachment inured to the attachment defendant, and was held by him at the very instant that it came into existence. The answer of the defendants shows that all of their property was held by William Foster, under a general assignment. Whatever right of action arose for injury to, or diminution in the value of this property, inured, not to the defendants, but to the assignee. Code, § 2127. If the defendants have acquired any right to sue for this damage, it can be only in virtue of the assignment, either written or in parol, of the assignee. The written assignment was made on tbe 3d day of Eebruary, 1881, more than three and one-half months after the commencement of the action. In the nature of things a parol assignment could not have been made until after the claim for damages arose; and, if made thereafter, it was not held by the defendants when the suit was commenced. The defendants do not, in their amended answer, allege that they owned this claim for damages at the time the action was commenced. They allege that at and before the filing of said original answer and counter-claim it was agreed and understood between them and William Poster, that these defendants should have the right to and should be considered the owners of the claim which Poster might have, as assignee, against plaintiffs, for the wrongful suing out and levying of said attachment, and that defendants are now, and were at the time the original answer and counter-claim was filed, both the legal and equitable owners of the cause of action, set up in their original answer and counter-claim and the amendment thereto. The action was commenced on the 19th day of October, and the original answer and counter-claim was filed on the 16th day of November. The amendment does not show that the defendants were the owners of the cause of action, at the time the suit was commenced, and for that reason the demurrer as to the fourth ground, was properly sustained.

III. The original notice was not served upon A. O. Atherton. It is claimed that he did not appear, by counsel or in person, and that therefore the judgment against him, personally, is erroneous. The abstract shows affirmatively that A.' C. Atherton does not appeal, and does not appear in this court. It is claimed, however, that the defendant, H. H. Eobinson, may raise objection to the judgment against Atherton, for the reason that the whole judgment may be collected of Atherton; and Eobinson, as partner, may then be required to contribute to the payment of the judgment, and thus be deprived of his right to reduce the judgment by his claim for damages for the wrongful suing out of the attachment. But, as Eobinson cannot sue upon the counter-claim for damages, this argument is deprived of all force. The judgment is

Affirmed.