Nordhaus v. Peterson Bros.

6 N.W. 77, 54 Iowa 68

• Court: Supreme Court of Iowa
• Decided: June 15, 1880
• Status: Published

Opinion

Day, J.

1. ATTACHmeht: wronglul JlinlSUííh, Bond. I. In the third, fourth and fifth instructions the court, in substance, directed the jury that the plaintiff might recover if he had not disposed of his property in r 1 . J whole or in part with intent to defraud his cred-R itors. These instructions are erroneous. In order to justify a recovery upon the attachment bond, it must appear not only that the ground alleged for the suing out of the attachment does not exist, but that the defendant had no reasonable cause to believe it existed. Code, § 2961; Burton v. Knapp, 14 Iowa, 196. Whilst these instructions are erroneous, the error was without prejudice to the defendants. The jury have found specially that the plaintiffs in the attachment suit had no reasonable cause to believe the ground upon which the attachment was sued out .was true. It follows that if this element had been incorporated in these instructions it could have made no difference in the general verdict.

• II. In the fourth instruction the court directed the jury that “ it mates no difference whether plaintiff owed Peterson Brothers anything at the time said writ was issued or not.” It is claimed that this direction is erroneous. Abstractly considered it may be so, for if the plaintiff did not owe Peterson Brothers, that alone would probably be conclusive of the fact that the attachment was wrongfully sued out. Gaddis v. Lord & Jewett, 10 Iowa, 141. In this case the fact that the plaintiff owed Peterson Bros, is fully established. The only question, then, upon which the wrongful suing out of the attachment in this case depends is, did the plaintiffs have reasonable ground to believe that the defendant in that action had disposed of his property in whole or in part with intent to defraud his creditors. The fact that the plaintiff owed the Petersons does not affect this question. As applied to the facts of this case the instruction is correct.

III. The defendants assign as error the giving of the following instruction:

2. —:-: damages. “ The pdaintiff in this action further claims that said attachment was not only wrongfully sued out, but that it was willfully, wrongly and maliciously sued out. On this subject you are instructed that the burden of proof is also upon the pdain'tiff. But if he satisfies you from the evidence that he had not disposed of his property, i/n whole or in part, with the intent to defroMd his creditors, and that the defendants, Peterson Bros., had no reasonable gromids for believing that this plaintiff had, prior to said attachment, disposed of his property, in whole or in part, with the intent to defraud his creditors, and that, notwithstanding such want of reasonable gromids of belief, they co-rmnenced their action, and sued out an attachment, then, in law, ¿uch is not only wrongfully, but, in law, 'maliciously issued, and plaintiff will be entitled to recover in ‘such case, not only actual, but, in addition thereto, exemplary damages. The malice necessa/ry to authorize exemplary damages is any inproper motive. It need not imply malignity or hatred to the individual, or a desire to injure 01 harass him. That which is done contrary to one’s own conviction of duty, or with a willful disregard of the rights of others, whether it be to compass some unlawful end, or some lawful end by unlawful means, or to do a wrong and unlawdhl act, knowing it to be such, constitutes legal malice. Hence, if you find that Peterson Bros., in their action against this plaintiff, as grounds for an attachment, made allegations which they knew to be false, then they are chargeable with malice.”

The part of this instruction which we have indicated in italics is clearly erroneous. All the facts stated in this part of the instruction are necessary to establish the fact of the wrongful suing out of the attachment and justify the recovery of actual damages. Code, § 2961; Button v. Knapp, supra. To make the act willfully wrong and entitle the plaintiff to exemplary damages, something more is necessary. It must appear that the creditor procured the attachment without any reasonable ground to believe the truth of the matters stated in the affidavit, and with the intention, design or set purpose of injuring’ the debtor. Raver v. Webster, 3 Iowa, 502. We think the last part of the instruction, that if Peterson Bros., in their action against plaintiff, made allegations as grounds for the attachment which they knew to be false they are chargeable with malice, is correct. But this does not cure the error in the first part of the instruction. The jury may have based their verdict upon the first, and not upon the-last part of the instruction. Nor is the instruction cured by the answer to the first special interrogatory. The jury find that the attachment was sued out maliciously, ox with the intention, design or purpose of injuring Nordhaus. But the notion of the jury that the attachment was sued out maliciously may have been based upon this erroneous instruction as to what constitutes malice. Eor the error in this instruction the judgment is

Reversed.