49 Iowa 45 | Iowa | 1878
While this instruction does not correctly present the law, we think the condition of the record is such that plaintiff cannot complain of the giving of it. The plaintiff asked the court to instruct the jury as follows: “If you find that at the time of suing out the writ the defendant was a nonresident of the State, then the attachment was not wrongful if you find for plaintiff five dollars.” If this instruction had been given the plaintiff could not have assigned the giving of
II. The court instructed the jury that if they found the defendant entitled to recover, they might allow him, as a part of his damages, the actual and necessary expenses incurred in defending the action, as shown by the evidence, and compensation for his loss of time in preparing for and attending the trial. At the time of rendering judgment the court fixed the sum of three hundred dollars as attorney’s costs, and allowed the defendant that sum for defending against the attachment. Appellant-now insists that, under the above instruction, the jury must have included an allowance for attorney’s 'fees in their verdict, and that the action of the court in allowing further damages for attorney’s fees, after leaving the subject to the jury, was unauthorized. The court allowed the jury to consider the expenses incurred in defending the action as shown by the evidence. The evidence is not in the record. We must presume, in favor of the court’s action, that no evidence on the subject of attorney’s fees was submitted to the jury.
III. A point is made upon the language of section 2961 of the Code. It is said that it authorizes the court to file, not to fix the attorney’s fees. ’ The word printed file in this section is written fix in the original act on file in the office of the Secretary of State.
AFFIRMED.