W. H. Austin & Co. v. Burgett

10 Iowa 302

• Court: Supreme Court of Iowa
• Decided: April 4, 1860
• Status: Published

Opinion

Lowe, C. J.

Two points claim the consideration of the court, in this case. The first relates to the supposed error of the court below in not quashing the attachment for the reasons assigned in the motion filed for that purpose. There were two reasons chiefly relied upon in support of the motion to dissolve; first, that the allegations in the petition were insufficient to authorize and sustain the attachment; second, that the individual property of defendant, Miller, only, was attached, and he had departed this life since the commencement of the action.

Upon, inspecting tbe petition it is difficult to perceive tbe insufficiency of the allegations to sustain tbe attachment, as they are made in almost the very words of the statute. It is true that it is alleged that the firm of II. Burgett & Co., have property not exempt from execution, which they refuse to give either in payment or security, &c., and the levy shows that the individual property of Miller, one of the defendants only, was attached, yet the petition as sworn to, charges that the defendant was a non-resident, and this court has held that in an action against two or more defendants the plaintiff is entitled to an attachment against the property of one defendant, on malting an affidavit showing the existence of the necessary facts as to such defendant, (which was done in this case,) and without alleging the insolvency of the remaining defendants. 6 Iowa 54; Chittenden v. Hobbs, 9 Iowa 417.

Whether the death of the party whose property was attached did in fact or law dissolve the attachment, is a question which does not necessarily arise in this case, for the reason that before his decease the party executed a delivery bond as prescribed in section 1876 of the Code, which had the effect to release the property from the custody of the law, and to leave it in the possession of the debtor or his legal representatives, free from the attachment, and subject to any disposition of it he, or they, might think proper. This bond is a new security and takes the place of the attachment lien; and when executed and delivered, it follows that the attachment has expended its force and is no longer operative. Under such circumstances, to dissolve the attachment upon motion would be in our judgment a useless, not to say anuga-tivo act on the part of the court.

The second point to be considered, is the allegation that the judgment below was for a sum greater than the plaintiff was entitled to recover on the note sued on. This error is confessed and would necessarily reverse the judgment below, but for the fact that the plaintiff offers to remit in this court the excess, $54,47. While this is his right and privilege it will not shield him from the payment of the costs of the appeal which were made necessary to correct an error occasioned by his own laches. A judgment will therefore be entered in this court for the sum of $494.50, being the amount for which the court below should have rendered judgment for the plaintiff; but the costs of the appeal will be taxed to the appellee.