Wadsworth v. Cheeny , 10 Iowa 257 ( 1859 )

Weight, C. J.

We shall confine ourselves in the examination of this case to the proceedings subsequent to the rendition of the verdict. And on doing so, we shall not determine whether plaintiffs had a right to file the second amended petition for we are clearly of the opinion, that if there was no irregularity in permitting such amendment, there was at least error, in overruling the motion to quash and the demurrer to the petition.

It will be observed that it was almost two years from the time the action was commenced, before this amendment was made. The averment in either the first or second amended petition, that defendants were then about to dispose of their property, or had disposed of it with intent &c.', could not have the effect of sustaining the attachment previously issued. The averment should relate back to the time of asking the attachment in the petition originally filed, No second writ was issued. Plaintiffs were not asking an attachment after the commencement of their action, but w’ere seeking to sustain the one originally issued. A purpose, on the part of defendants to then dispose of their property, or the actual disposition of it, with intent &c., could make no difference, so far as the right of the plaintiffs to the attachment already issued was concerned. Not only so, but the amendment is inconsistent with itself. It is averred that the account was made in September 1857, and was due in July, 1858. Then follows the averment that “nothing but time is wanting to fix an absolute indebtedness.” The amendment containing these-inconsistent averments was filed July 8, 1859.

As there was no sufficient petition to sustain the attachment proceedings, the court erred in rendering judgment for plaintiffs for the amount of their claim. The law gives a plaintiff the right to an attachment to secure a debt not due, upon his making the required affidavit and executing the proper bond. If he does not ask an attachment, he has no right to his action upon a demand not mature. If his attachment proceedings are so irregular as to be sot aside, the whole action fails.

The judgment is reversed.