Citizens National Bank of Des Moines v. Converse

Deemer, C. J. 1 — After the writ had been sued, out, plaintiff filed an amendment to its petition, in which it alleged, as an additional ground for an attachment,“that the debt was incurred for property obtained under false pretenses.” It further alleged that this ground existed at the time the original petition was filed, but that it was not informed of the fact until after the levy of the writ. Defendant moved to strike [671] this amendment, but his motion was overruled. The court instructed the jury that, if this ground for attachment actually existed at the time the writ wa.s sued out, then it was not wrongful, and further said that, if the jury found that this ground did not exist, then they need not consider whether plaintiff had reasonable ground to believe it to be true, for the reason that plaintiff did not know when it sued out the attachment whether it was true or not. Complaint is made of the ruling and of the instruction. Section 3021 of the Code of 1873 is as follows: “This chapter shall be liberally construed, and the plaintiff at any time when objection is made thereto, shall be permitted to amend any defect-in the petition, affidavit, bond, writ or other proceeding; and no attachment shall be quashed, dismissed, or the property attached released, if the defect in any of the proceedings has been, or can be amended so as to show that alegal cause for the attachment existed at the tim e it was issued; and the court shall give the plaintiff a reasonable 'time to perfect such defective proceedings; the causes of attachment shall not be stated in the alternative.” We think this, section is broad enough to authorize the procedure in this case. It permits the amendment of the petition to show that legal cause for the attachment existed at the time the writ was issued. This is exactly what was done by the plaintiff. In the case of Griffith v. Harvester Co., 92 Iowa, 638, we said: “One of the evident purposes of this section is to prevent the loss to the plaintiff, by reason of defects in the proceedings which he is able and willing to cure, of the benefits he would derive from the attachment, and to give him a reasonable opportunity to make the correction.” The cases of Wadsworth v. Cheeny, 10 Iowa, 257, and Bundy v. McKee, 29 Iowa, 253, seem to fully justify the ruling on the motion. The instruction to which we [672] have referred, was undoubtedly correct. Vorse v. Phillips, 37 Iowa, 428. But it is said that, taken in connection with other instructions relating to reasonable-ground for belief of the matters stated as grounds, for attachment, it was misleading and confusing. The other instructions stated rules applicable to such counterclaims, in the ordinary and usual manner, and made the question of plaintiff’s belief in the truth of the-ground for attachment set' up in the amendment a material inquiry. After the j ury h ad retired, -they asked for further instructions; and the court gave the one to which we first called attention, premising it with the statement that this ground for attachment was set up,, by way of amendment to the petition, after the attachment was issued, and then stated, that, if they failed to-find -it was -true, then they need not consider whether or not plaintiff had reasonable ground to believe it to- be true. The -error, if any, in the original instructions, was. covered by the additional charge; and, when all are considered together, there is no reason for thinking that the jury was misled thereby. 2 II. Plaintiff was permitted to introduce in evidence -the written, bids made to the receiver for the goods levied upon under the attachment, and the report of the receiver with reference to- the sale. This is said to be -error, because such bids are not competent to prove- value. These bids were in writing, and were filed in the receiver-ship proceedings. We-have held, in cases involving the. value of personal property, -that it is- competent to show what the property sold for. See Buford v. McGetchie, 60 Iowa, 298; Clements v. Railway Co., 74 Iowa, 442. And the supreme courts of -Michigan and New York, which hold to-the same doctrine, also say that such evidence is competent, although the property was sold at auction. Smith v. Mitchell, 12 Mich. 180; Davis v. Zimmerman, 40 Mich. [673] 24; Dyer v. Rosenthal, 45 Mich. 588; Campbell v. Woodworth, 20 N. Y. 499), or at sheriff’s sale (Gill v. McNamee, 42 N. Y. 44). If this rule be- correct, — and we think it is, — then it is certainly competent to- show the number of bidders, and the offers made at the time the goods were exposed- for sale. Such evidence, if not sub-substantive proof of value, would throw considerable light upon 'the question as to whether or not the goods sold for a fair price. Mention should be made, before leaving this branch of the case, of the fact that -the sale was made within a few weeks after the levy of the attachment. The evidence was competent, and r elevant to- the issues presented; and, although it may be conceded that it was not of itself sufficient to prove value, and of but little value, yet, if admissible for any purpose, the court properly overruled the objection. See, also, Joy v. Insurance Co., 83 Iowa, 12, and Thompson v. Anderson, 94 Iowa, 554. 3 III. Certain mortgages executed by defendant on the same day, but after the attachment was levied,, were introduced in evidence over defendant’s objection, and.the ruling is assigned as error. We have heretofore held that such evidence is admissible. Mayne v. Bank, 80 Iowa, 710; Deere v. Bagley, 80 Iowa, 197. 4 IY. Shortly before the attachment was sued out,, one of defendant’s creditors telegraphed the attorneys for the bank with reference to a claim of one Thousand dollars it held against him, saying, among other things: “He is certain, to fail. Unless he will secure a,t once attach.’’ This telegram was shown .some of the officers of the bank bef ore it sued out the writ, and was admitted in evidence over appellant’s objection. That it was properly admitted, see Deere v. Bagley and Mayne v. Bank, supra; Bowman v. Manufacturing Co., 96 Iowa, 188. [674] V. Some other questions, relating to the sufficiency of the evidence, and to alleged errors of the court in submitting certain issues to the jury, are argued by counsel. They are not of sufficient moment to justify ■separate consideration, and we dismiss them by saying we discover no error. The verdict has support in the evidence, and the judgment is affirmed.