Sturman v. Stone

Cole, J. [116] i. pmíadikg: property1.1’ ° [115] — I. The plaintiff; in his petition, averred in substance, briefly stated, that, from the 15th of August to [116] December 1, 1869, at Sioux City, Iowa, defendant had in his possession, and under his control, $5,000 in money and $10,000 in hardware, tinware, stoves,' etc., of the money and property owned by petitioner, and received of and from divers other persons for the use and benefit of petitioner, which he promised to account for when requested; but that he wrongfully took and appropriated and converted to his own use an amount to the worth and value of $5,000, for which plaintiff asks judgment; The pétition also alleged, as cause for attachment, that defendant was about to dispose of or remove his property out of the State, etc., and asked for a writ of attachment. An order was indorsed on the petition, by the circuit judge, that $3,000 in value, of property, might be attached. The defendant moved for a more specific statement of the petition, so that it should show what part of the property belonged to plaintiff and what to others, and each of them, and their names; what kind of property; the facts showing plaintiff’s right to the use and benefit; the amount of money belonging to plaintiff and each of the others; and what share of each defendant had converted to his own use, etc. This motion was overruled, and the same is assigned as the first error. As we construe the language of the petition it amounts to an averment of ownership by plaintiff of the property and money sued for, though defendant received it from others; and hence there was no occasion to state specifically what part belonged to others, etc., as moved for. Nor was it necessary to state the' facts showing plaintiff’s right to the use and benefit of the property, any more than it is necessary to. state-the facts showing the plaintiff’s title when he avers absolute ownership in himself of personal property generally; and so of each matter contained in the motion. ' There was no error, therefore, in overruling it. [117] 2 Attachmeht : circuit courts: torts. II. The court was asked to dissolve the attachment, because the action was brought in the circuit court for a tort, and the allowance of the amount of prop- • ^ ertv to be attached was made by a circuit judge, d «/ «i o ^ — the appellant’s counsel claiming, in a well-put and perspicuous argument, that no attachment for a claim in tort can issue except in the district court. Without deciding or conceding that this action is for a tort, or that plaintiff, by obtaining an order of allowance of the amount of property to be attached, is estopped from denying that it is, we will dispose of the points made by counsel. It is provided by Revision, section 3177, that “ if the demand is not founded on contract, the original petition must be presented to some judge of the supreme or district court, or the judge of the county court, who shall make an allowance thereon of the amount in value of the' property that may be attached. The provisions of this section apply only to cases in the district court.” The jurisdiction or authority to issue writs of attachment' is not given or conferred by this section. That jurisdiction is given in full and generally, by a preceding section, 3172, where it is provided that a plaintiff, in a civil action, may cause any property of the defendant to be attached, etc. Section 3175 regulates the manner in which attachments in eases of contract shall issue; and section 3177, sufra, regulates the manner in cases of tort, but limits this regulation to cases in the district court. So that, without more, no order of allowance, etc., would be required in cases before justices of the peace or in the circuit court. By section 2 of chapter 161 of the Laws of 1870, however, the words “and circuit court” are added to section 3177, copied sufra. But, aside from this view, we should have no difficulty in holding that the section applied to eases in the circuit courts, and that circuit judges had authority to make the order of allowance, etc.; and this, under sections 4, 8 and [118] 9 of the circuit court law (chap. 86 of Laws of 1868), wbicb. confers upon tbe circuit courts concurrent jurisdiction witb tbe district courts in all civil actions at law; and upon tbe circuit judges tbe sarde powers out of court in regard to writs tbat tbe district judges bave; and make all statutes, respecting tbe process and practice of tbe district courts, applicable to tbe circuit courts, etc. ■ 3. — causes cannot be put in issue. III. Tbe defendant also grounded bis motion to dissolve tbe attachment upon certain affidavits filed by him, showing that the cause for attachment, as stated by . ,.™. . . ,... , , the plaintnt m ms petition, was not true — tbat it bad no existence in fact. Tbis was also overruled and sucb ruling is assigned as error. It is probable, as stated by appellant’s counsel, tbat tbis precise phase of tbe question has never been decided by tbis court. Rut we could not reverse tbe ruling of tbe district court in tbis case without substantially reversing also' several previous rulings of this court. For instance, in tbe case of Sackett et al. v. Patridge et al., 4 Iowa, 416, where tbe plaintiff in bis answer took issue upon facts alleged for a writ of attachment, tbe court said, per Woodward, J.: “ Sucb was once tbe law by 'express provision, but tbat statute has long been repealed, and tbe general and better opinion now is, tbat sucb issues cam be made only im cm action on the attachment bondP In Veiths v. Hagge, 8 Iowa, 163 (i. e.) 193, Wright, Cb. J., says: “It has been held by tbis court tbat no issue cam be joimed in tbe principal suit on tbe averment of facts contained in tbe affidavit on wbicb tbe writ issues.” See, also, Berry v. Gravel, 11 Iowa, 136, and authorities there cited. • Tbe statute itself provides tbat “ the fact stated as a cause of attachment shall not be contested in tbe action by a mere defense. Tbe defendant’s remedy shall be on tbe bond,” etc. Rev., § 3238. Tbe case of McLaren v. Hall, 26 Iowa, 297, is not in conflict witb tbe previous cases cited sugpra. Affirmed.