Mitchell v. Joyce

Supreme Court of Iowa

Mitchell v. Joyce

34 N.W. 455, 76 Iowa 449, 1889 Iowa Sup. LEXIS 2

CourtSupreme Court of Iowa

DecidedOctober 15, 1887

StatusPublished

Cited by4 cases

This text of 34 N.W. 455 (Mitchell v. Joyce) 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

Mitchell v. Joyce, 34 N.W. 455, 76 Iowa 449, 1889 Iowa Sup. LEXIS 2 (iowa 1887).

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Opinions

Adams, C. J.

— The counter-claim was based in part upon the allegation that the writ of attachment was wrongfully sued out, and in part upon another matter. The jury found specially that the writ was not wrongfully sued out, and the plaintiff insists that the general verdict should have been for him. He moved the court below to render judgment in his favor for the amount due him regardless of the counter-claim, which amount, according to the finding of the jury, was $339.25, and interest. The court overruled the motion, and he assigns the action of the court in that respect as error.

The verdict in the defendant’s favor was rendered upon the theory that the plaintiff had become liable to the defendant for property seized in the sum of [451]*451$1,068.07. The plaintiff insists that, unless the- writ was wrongfully sued out, there was no such liability as could be made the subject of a counter-claim, because the liability, if any, accrued after the commencement of the action. ' To this the defendant replies that, whether the liability could be properly set up as a counter-claim or not, he did set it up in his answer, and that the same was not demurred to, and that the case was tried upon the issue thus tendered, and that the plaintiff cannot now be ■allowed to ask for judgment on the special verdict, as if there had been no such issue. The case then appears to be this: A matter is pleaded as a counter-claim which shows a liability, but not a liability which can properly be set up in that way. No demurrer, however, is interposed, and the case goes to the jury upon the counter-claim, and the same is allowed. Can the court, on motion, disregard this allowance, and treat the case the same as if such counter-claim had not been pleaded ? We think not.

If the facts pleaded in the counter-claim had been of such kind that the defendant could not recover on the same in any form, it may be that the plaintiff’s motion might be treated as a motion in arrest of the general judgment, under section 2650 of the Code. But such is not this case.

The plaintiff calls our attention to the fact that he objected to evidence of the alleged liability, on the ground that it was incompetent and immaterial. But no exception was reserved to the overruling of the objection, and no assignment of error is based thereon. The general verdict having been rendered under the issues as made and tried, we cannot say that the court erred in refusing to set it aside on the ground that what was set up as a counter-claim was available to the defendant only as an independent cause of action.

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Adams, C. J.

— The counter-claim was based in part upon the allegation that the writ of attachment was wrongfully sued out, and in part upon another matter. The jury found specially that the writ was not wrongfully sued out, and the plaintiff insists that the general verdict should have been for him. He moved the court below to render judgment in his favor for the amount due him regardless of the counter-claim, which amount, according to the finding of the jury, was $339.25, and interest. The court overruled the motion, and he assigns the action of the court in that respect as error.

The verdict in the defendant’s favor was rendered upon the theory that the plaintiff had become liable to the defendant for property seized in the sum of [451]*451$1,068.07. The plaintiff insists that, unless the- writ was wrongfully sued out, there was no such liability as could be made the subject of a counter-claim, because the liability, if any, accrued after the commencement of the action. ' To this the defendant replies that, whether the liability could be properly set up as a counter-claim or not, he did set it up in his answer, and that the same was not demurred to, and that the case was tried upon the issue thus tendered, and that the plaintiff cannot now be ■allowed to ask for judgment on the special verdict, as if there had been no such issue. The case then appears to be this: A matter is pleaded as a counter-claim which shows a liability, but not a liability which can properly be set up in that way. No demurrer, however, is interposed, and the case goes to the jury upon the counter-claim, and the same is allowed. Can the court, on motion, disregard this allowance, and treat the case the same as if such counter-claim had not been pleaded ? We think not.

If the facts pleaded in the counter-claim had been of such kind that the defendant could not recover on the same in any form, it may be that the plaintiff’s motion might be treated as a motion in arrest of the general judgment, under section 2650 of the Code. But such is not this case.

The plaintiff calls our attention to the fact that he objected to evidence of the alleged liability, on the ground that it was incompetent and immaterial. But no exception was reserved to the overruling of the objection, and no assignment of error is based thereon. The general verdict having been rendered under the issues as made and tried, we cannot say that the court erred in refusing to set it aside on the ground that what was set up as a counter-claim was available to the defendant only as an independent cause of action.

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34 N.W. 455, 76 Iowa 449, 1889 Iowa Sup. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-joyce-iowa-1887.

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