Tullis v. McClary

128 Iowa 493 | Iowa | 1905

Ladd, J.

Tbe only issue raised by tbe answer was whether plaintiff owned tbe note sued on.' She Was tbe payee named therein, and its production, without’ indorsement, for cancellation upon the entry- of judgment was sufficient evidence of ownership.

As the plaintiff was put to her proof merely by a denial based solely on want of information, in the absence ■of any claim that the facts were otherwise, the court did not err in declining to set aside the judgment entered by •default for the amount due.

The dismissal of the counterclaim was set aside, and upon the introduction of defendant’s evidence a verdict was •directed for the plaintiff. The grounds alleged for suing •out the writ of attachment were that the principal debtor, McClary, was about to remove permanently from the county, and, although having propérty therein exempt from execution, refused to pay or secure the plaintiff; and that he was .about to remove his property, or a part thereof, out of the ■county, with intent to defraud his creditors. The evidence introduced by the defendant tended to show that, though he had arranged to move into a neighboring county, he intended to pay the note before going. This was to be done by the clerk at an auction sale of his stock and other property out of the proceeds derived therefrom, and, according to his testimony, plaintiff had agreed to place 'the note in •the clerk’s hands for such purpose. This was inconsistent with any purpose to defraud, and he denied ever having refused to pay or secure the debt. The record, then, was ■such that the jury might' have found the grounds of the attachment untrue, and that plaintiff acted without reasonable belief to the cpntrary.

No damages were proven, but this was not defendant’s fault. After stating that he had employed counsel to defend in the attachment suit, McClary was asked the following questions: “ Did you spend any time in the matter of ■employing counsel to defend this suit ? How much time did ;you spend in employing counsel and advising with counsel ■as to your rights in the case ? How much time did you ¡spend in procuring a delivery bond ? Did the delivery bond cost you anything?”- These were objected to as incompetent, immaterial, and irrelevant, and the objections sustained. They should have been overruled. The necessity of releasing the property by the execution of the delivery bond was a direct Consequence of the levy of the writ, and if he spent time in obtaining it, and expended money therefor, the value of such time and the cost of the bond were proper elements of damage. So, too, was. he entitled to recover the value of time reasonably expended in preparing for his defense against the attachment, if wrongfully sued out-, and this included that necessarily expended in consulting his attorney. He testified that he 'lost a week’s time from his occupation in baling hay in preparing to defend, that in going to Oskaloosa for that purpose five different times he was compelled to use his team, and was then asked: “ Q. Was "the time of your team worth anything? A. Yes, sir. Q. How much per day? (Same objection as before and ruling.) Q. How much per day were you earning when you were at work bailing hay? (Same objection and ruling.)” The rulings were erroneous. If his team was necessarily used in making the trip to consult counsel, the value of their use was a legitimate element of damages, and proof of what he was earning in his ordinary occupation was some evidence of the value of his time.

Because of these errors the judgment is reversed.-