10 Iowa 23 | Iowa | 1859
Lead Opinion
In tbe petition for tbe attachment, tbe plaintiffs allege that, “to tbe best of their knowledge and belief, the defendants have disposed of their property in part, and are about to dispose of it in whole, with intent ” &g. Tbe attorney, in making affidavit to this petition, avers that tbe statements are true “ to tbe best of bis knowledge and belief.” Tbe motion to quash is upon tbe ground that the petition and affidavit are insufficient. Tbe law requires tbe affiant to declare that be “verily believes” that tbe other party has done, or is about to do, tbe objectionable act. To say that to tbe best of my knowledge and belief he is about to, expresses no belief. I may, consistently with that declaration, have very little knowledge, and a very slight belief in relation to it. Might not a third person .make that affidavit nearly as well as tbe plaintiffs, though be bad no knowledge upon it ? Then tbe affidavit is in the same language. According to tbe best knowledge and belief of tbe attorney, tbe petition states tbe facts according to the best knowledge and belief of tbe plaintiffs. This does not approach near to an assertion that one “ verily believes ” tbe thing stated. Tbe statute abstains from requiring a party to aver the fact, but calls for bis belief, and nothing less than this will do. Tbe defendant can form an issue on tbe ground for belief, but not on tbe other formula of expression. We think tbe court erred in sustaining this affidavit and petition.
But I am inclined to look upon the point as being still under the common law rule, which requires each cause of action to be stated distinctly and by itself. The same reasons exist now which ever have existed for this practice, and which lie in the necessity for keeping the defenses distinct, in ordinary cases, and in the possible or probable confusion of defenses and issues, unless the causes of action are thus separate. When the Code permits several causes of action to be united in one suit, or petition, it does not mean in one count. And when the Code says the petition is sufficient if it states the cause of action in a manner intelligible to the common understanding, it refers to the statement of each several cause of action. The rules of law and of logic require the severence of the different causes. And I can perceive no difference between money demands and trespasses, or other causes of action. But the action of the court in overruling the demurrer to the petition upon this ground, is sustained.
The third assignment of error is to the sustaining the demurrer to the answer. In two counts of the answer the defendant pleaded as a set-off a claim for the wrongful procurement of the attachment.
The first cause of demurrer is, that no copy of the bond is filed. The answer refers to the original as being on file. This is not so certain as legal proceedings require. But this objection will apply only to the second count, for the first count of the plea of set-off (as we understand it) is based upon a supposed right of action independent of the bond. Other causes of demurrer to the set-off are, that this matter
That a canse of action arising from wrongfully suing out of an attachment may be set off in the same action in winch the attachment is sued, was decided in the case of Reed v. Chubb Bros., Barrows & Co., 9 Iowa 178. As to the second ground, that the causes are notbetween the same parties, when the bond is a joint and several one, as the obligee might sue one of the obligors, he may set it off against the plaintiff in the action. But when the bond is joint only as he could not sue one of the obligors, he cannot set it off against him. In the present case it is joint only, and therefore, (it being the bond of four obligors) he cannot make the use of it.
But, as before intimated, the first count of the answer in the set-off is understood not to be based upon the bond, but upon the right of action for a wrongful suing out of the attachment, independent of the bond. The right of action, under this view, would be against the plaintiffs alone, and therefore may be pleaded against them. As the demurrer was to the whole of the answer, and was sustained, the ruling was erroneous as to the first count, and the set-off should have been allowed.
The fourth assignment of error is to the amount of the judgment. When the plaintiff claims a certain amount, which is the face of the notes, and interest, the rule is to allow him interest from the commencement of the action. But this judgment is for a much larger sum than this would give. It is evident that interest from the time when the notes drew it, was included. There is error in this.
Another error assigned, is the rendition of judgment by default, when there was an issue made by the answer. The defendant first filed a brief, general denial of the averments of the petition. Afterward he filed another answer admitting the notes and pleading the offset. The above named first answer is not disposed of, so far as appeal's by the record, but the cause proceeded upon the second answer and the other proceedings, without any question appearing to be made
Tbe judgment is reversed.
Dissenting Opinion
dissenting-. — I was not present when tbe case of Reed v. Chubb Bros., Barrows § Co., and Zinn & Co. v. Williams, 9 Iowa 178, were decided, and never concurred in tbe view of tbe law there expressed. And now on tbe first opportunity when the question again arises, I desire to express my dissent. I have never supp osed that a defendant could set off, on tbe trial of tbe main action, tbe damages resulting to him by reason of tbe wrongful suing out of tbe attachment. It is not in my opinion a claim held by him at the time the suit ivas commenced. Tbe language of law is that tbe attachment can issue only at tbe commencement or during the progress of the proceedings. Section 1846, Code. Until tbe attachment issues there can be no damages, no claim in favor of tbe party defendant. Then if it has not issued and can not issue before tbe commencement of the action, how can it be a claim held, within tbe meaning of tbe statute, at the time of the commencement or institution of tbe suit. Eor these reasons thus briefly expressed, I dissent.