89 Iowa 350 | Iowa | 1893
The plaintiff claims that in the years 1890 and 1891 he received from the defendant, to pasture, feed, and keep for hire, one mare and her colt and two cows; that he pastured, kept, and fed them until about the thirteenth day of September, 1891; that the reasonable value of the pasturage, keeping, and feeding was the sum of one hundred and twenty-eight dollars. In his original petition he asked for the issuance of a writ, of attachment against the property of the defendant, and as ground therefor stated that the defendant had absconded so that ordinary process could not be served upon him, that he was a nonresident of this state, and that he was about to convert his personal property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors. He also stated that his claim was for keeping, feeding, and pasturing stock, and as a lien therefor he asked an attachment. He filed in the office of the clerk an attachment bond, which was approved. A writ was issued, which was levied upon the property, on account of which the plaintiff seeks to recover. The defendant denies the allegations of the petition, and avers, byway of counterclaim, that the plaintiff is indebted to him for the use of the mare, the cows, a mower, and a wagon, for corn, and two hogs sold, in the sum of one hundred and forty-six dollars. The defendant asks judgment for that amount, and for the sum of one thousand dollars on account of the wrongful and malicious suing out of the writ of attachment. In an amendment to his petition, made after the answer was filed, the plaintiff alleged that when the action was commenced he was, and is now, entitled to a lien on the stock for his charges; that the stock has been, and is, in his possession; that his attorney, in preparing the petition, used a printed form, and by oversight and mistake omitted to erase therefrom the parts alleging
11 Fifth. As to the counterclaim based upon the attachment, you are instructed that’ under the undisputed facts in the case the issuance of the writ of attachment was wrongful, and that plaintiff had no lien upon the defendant’s stock. If, then, you find from the evidence that in suing out said attachment the plaintiff acted maliciously, defendant will be entitled to recover such damages, if any, as he has suffered by reason of such wrongful act.”
IV. It is urged, finally, that the amount of defendant’s recovery is excessive. There was some conflict in the evidence in regard to what the plaintiff had furnished for the defendant, and its value, and in regard to what the defendant had furnished the plaintiff, and its value, but the jury, were authorized to find for the defendant, on account of his claims, other than that of the wrongful and malicious suing out of the writ, in a considerable amount. The evidence also shows that the defendant sustained actual damage to a considerable amount from the serving of the writ in the loss of the use ,of his property. Therefore it can not be said that there was
We discover no reason for disturbing the judgment of the district court. It is, therefore, affirmed.