Winchester v. Cox

Supreme Court of Iowa

Winchester v. Cox

4 Greene 121

DecidedJune 15, 1853

StatusPublished

This text of 4 Greene 121 (Winchester v. Cox) 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.

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Winchester v. Cox, 4 Greene 121 (iowa 1853).

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Opinion

Opinion by

Greene, J.

Suit upon an attachment bond, for the wrongful suing out of the writ. A demurrer to the petition was sustained by the court below. It is now claimed that this was error.

The special cause of demurrer, is that the petition presents a false issue by avowing that the plaintiffs “ were not [122]*122about to dispose of their property without leaving sufficient in the state to pay their debts, with intent to defraud their creditorswhile the averment should tender the true issue, “ that there was' not sufficient cause for believing that they were about to dispose of their property,” &c.

O. Bates, for appellants. B. Granger and J. J). Temflin, for appellee.

Under the Code, § 1848, if “ affiant verily believe the defendant ” is doing, or has done, that which will justify the attachment, he can rightfully swear out the writ; but if there was no foundation for chat belief, no cause for plaintiffs’ fears that he might lose his debt, without the attachment, then the suing out would be wrongful.

If a debtor, by imprudent conduct, gives his creditors sufficient cause to believe that he intends to defraud them in any of the methods referred to by the Code, he legally subjects himself to an attachment, although, in tact, he may have had no fraudulent intentions, and may not have been disposing of his property as the creditor had reason to believe he was doing. If, on the other hand, the conduct and reputation of the debtor was that of a reliable and solvent business man, or if he was not legally indebted to the plaintiff, he might, then, assume that the attachment was wrongful, and recover damages upon the bond ; if his petition “ contains a statement of facts constituting the cause of action,” Code, § 1736, shown “by a fair, and natural construction.” Code, §, 1734.

As an attachment may be ^issued, if the affiant verily believes the necessary facts, it follows that the suing out was legal, and not wrongful, if there was good cause for that belief; but if the belief expressed, appears to have been without foundation or verity, the suing out might well be regarded as wrongful.

We conclude, then, that the demurrer was properly sustained.

Judgment affirmed.

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Opinion by

Greene, J.

Suit upon an attachment bond, for the wrongful suing out of the writ. A demurrer to the petition was sustained by the court below. It is now claimed that this was error.

The special cause of demurrer, is that the petition presents a false issue by avowing that the plaintiffs “ were not [122]*122about to dispose of their property without leaving sufficient in the state to pay their debts, with intent to defraud their creditorswhile the averment should tender the true issue, “ that there was' not sufficient cause for believing that they were about to dispose of their property,” &c.

O. Bates, for appellants. B. Granger and J. J). Temflin, for appellee.

Under the Code, § 1848, if “ affiant verily believe the defendant ” is doing, or has done, that which will justify the attachment, he can rightfully swear out the writ; but if there was no foundation for chat belief, no cause for plaintiffs’ fears that he might lose his debt, without the attachment, then the suing out would be wrongful.

If a debtor, by imprudent conduct, gives his creditors sufficient cause to believe that he intends to defraud them in any of the methods referred to by the Code, he legally subjects himself to an attachment, although, in tact, he may have had no fraudulent intentions, and may not have been disposing of his property as the creditor had reason to believe he was doing. If, on the other hand, the conduct and reputation of the debtor was that of a reliable and solvent business man, or if he was not legally indebted to the plaintiff, he might, then, assume that the attachment was wrongful, and recover damages upon the bond ; if his petition “ contains a statement of facts constituting the cause of action,” Code, § 1736, shown “by a fair, and natural construction.” Code, §, 1734.

As an attachment may be ^issued, if the affiant verily believes the necessary facts, it follows that the suing out was legal, and not wrongful, if there was good cause for that belief; but if the belief expressed, appears to have been without foundation or verity, the suing out might well be regarded as wrongful.

We conclude, then, that the demurrer was properly sustained.

Judgment affirmed.

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4 Greene 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winchester-v-cox-iowa-1853.