Gourley v. Carmody

Supreme Court of Iowa

Gourley v. Carmody

23 Iowa 212

DecidedJuly 31, 1867

StatusPublished

This text of 23 Iowa 212 (Gourley v. Carmody) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gourley v. Carmody, 23 Iowa 212 (iowa 1867).

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Opinion

Weight, J.

l. amend-attachment proceeding, As we construe the justice’s transcript, plaintiff ashed leave to amend his petition, bond, and also writ,- before the submission of the motion to dissolve. It also appeared that an amended bond and petition were filed, and still the justice sustained the motion, and ordyed the attached property to be released. If under the statute the amendments were permissible, then to this extent the defects were cured. An examination of them satisfies us that the plaintiff did not do more than was his right under section 3212 of the Revision. The amendments to the petition were in form rather than substance; there was no statement of new causes for the attachment, but that in the original, merely made more specific. The new bond was the same as the original, except in the amount of the penalty. Such amendments are unquestionably proper under the statute.

The point upon which the justice relied in making the order, was probably the defect in the bond. The petition claimed ninety dollars, and the notice the same amount. The writ commanded the officer to attach property sufficient to satisfy the sum of ninety-nine dollars. Taking the whole record together, this was manifestly a clerical error, and one which the justice, under the liberal rule [214]*214of the statute (§ 3242), had the clear right to amend. And this amendment he should have made. At all events, after the plaintiff asked to amend and eorrebt this particular defect, it was error upon this ground to dissolve the attachment. And see §§ 2978, 4119; Wadsworth v. Cheeney, 13 Iowa, 576; Langworthy v. Waters, 11 Id. 432.

2. writ or • mmRoftSeS" mstnct court, The District Court erred, however, in rendering judgment in the principal case against the defendant. The writ of error only reached to and brought up f° review, the auxiliary part of the proceedings. No errors were assigned in relation to the judgment against defendant. Berry v. Gravel, 11 Iowa, 135; Hays v. Gorby, 3 Id. 206; Rev. § 3938. Having reversed the order dissolving the attachment, that branch of the cause should have been remanded, with d¡flections to the justice, to proceed to enforce the judgment, with the lien of the attachment retained.

The case will be remanded, that this order may be .made, appellant recovering his costs.

Reversed.

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Weight, J.

l. amend-attachment proceeding, As we construe the justice’s transcript, plaintiff ashed leave to amend his petition, bond, and also writ,- before the submission of the motion to dissolve. It also appeared that an amended bond and petition were filed, and still the justice sustained the motion, and ordyed the attached property to be released. If under the statute the amendments were permissible, then to this extent the defects were cured. An examination of them satisfies us that the plaintiff did not do more than was his right under section 3212 of the Revision. The amendments to the petition were in form rather than substance; there was no statement of new causes for the attachment, but that in the original, merely made more specific. The new bond was the same as the original, except in the amount of the penalty. Such amendments are unquestionably proper under the statute.

The point upon which the justice relied in making the order, was probably the defect in the bond. The petition claimed ninety dollars, and the notice the same amount. The writ commanded the officer to attach property sufficient to satisfy the sum of ninety-nine dollars. Taking the whole record together, this was manifestly a clerical error, and one which the justice, under the liberal rule [214]*214of the statute (§ 3242), had the clear right to amend. And this amendment he should have made. At all events, after the plaintiff asked to amend and eorrebt this particular defect, it was error upon this ground to dissolve the attachment. And see §§ 2978, 4119; Wadsworth v. Cheeney, 13 Iowa, 576; Langworthy v. Waters, 11 Id. 432.

2. writ or • mmRoftSeS" mstnct court, The District Court erred, however, in rendering judgment in the principal case against the defendant. The writ of error only reached to and brought up f° review, the auxiliary part of the proceedings. No errors were assigned in relation to the judgment against defendant. Berry v. Gravel, 11 Iowa, 135; Hays v. Gorby, 3 Id. 206; Rev. § 3938. Having reversed the order dissolving the attachment, that branch of the cause should have been remanded, with d¡flections to the justice, to proceed to enforce the judgment, with the lien of the attachment retained.

The case will be remanded, that this order may be .made, appellant recovering his costs.

Reversed.

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