#### W. F. Insell, Appellant, v. Lawrence Kennedy, Appellee.

1 Continuance: Ruling os motion. The action of the trial court in overruling a motion for a continuance based on want of notice that the cause had been assigned.for trial, where there is a dispute regarding such notice, will not he disturbed.

2 Appeal: notice : continuance. Onder Code, section 4560, where an appeal from a judgment of a justice is not tafeen on the day it is rendered, the cause will stand for a continuance at the next term of the district court by operation of law, in the absence of notice or waiver of the same.

3 Garnishment: counterclaim: evidence. It is improper to per, mit defendant on a counterclaim for wrongful • garnishment to testify that it is the practice of his employer to discharge employes who suffer a garnishment of their wages, there being no allegation of discharge and no showing that plaintiff knew of this practice.

4 Wrongful Garnishment: instruction. An instruction that if the jury find that at the time of the commencement of the action defendant was owing plaintiff less than $5, then the suing out of the writ of attachment was wrongful, is erroneous, as it is the amount claimed and not the amount recovered that governs the issuance of the writ, under Code, section 4579.

*Appeal from Wright District Court.*— Hon. J. R. Whitaker, Judge.

Saturday, April 11, 1903.

The opinion states tbe case.—

*Reversed.*

*Porter Donly*and *Filkins*ds *Schaifter*for appellant.

*Me Grath da Bryan*for appellee.

Weaver, J.

Plaintiff began action before a justice of the peace February 15, 1901, to recover from defendant the sum of. $8.36 for board, and sued out a writ of attachment on the allegation that defendant \yas a nonresident of the *235state. Under this writ the Chicago & Northwestern Railway Company was garnished, and answered that it was indebted to defendant in the sum of $56.65. On March 22, 1901, defendant appeared, denying the plaintiffs claim, and setting up a counterclaim on the. attachment bond; alleging that the writ was sued out wrongfully and maliciously, and claiming damages for time lost in attending trial, $12, attorney’s fees, $15, and exemplary damages in the further sum of $68. He also, pleaded a further counterclaim of $5 for money loaned to plaintiff in the year 1892. There was trial to a jury, and on March 27, 1901, a verdict and judgment were found for plaintiff for $6.36. Defendant on the following day appealed to the district court, at the next term of which there was trial to a jury, resulting in a verdict for the defendant for" $1.44. From judgment on this verdict, plaintiff appeals.

I. The first error assigned is upon the ruling of the trial court denying plaintiff’s motion for a continuance. Ordinarily a ruling upon a motion for continuance will not l continu-onmoSÍ8 be held reversible error, save where there is a manifest abuse of the discretion reposed in the trial court. ' It is claimed, however, that the continuance here demanded was a matter of statutory right. Code section 4560, provides that, where an appeal is not taken on the day-judgment is rendered by the justice, a written notice thereof must be served on the opposite party at least ten days before the next term of the district court, and, if such notice be not served, the action will be continued on motion of appellee. No notice was served in this case. The transcript was transmitted by the justice to the district court in due time, but was not entered by the clerk upon the appearance, docket. The next term of the district court commenced April 22, 1901, and on April 26th the case was assigned for trial, but there is a dispute whether plaintiff or his counsel had notice of the order. On May 2d, before the case was called for trial, plaintiff *236filed a motion setting up the foregoing facts, and asking a continuance, which was denied after a showing in insistence by the defendant. If the plaintiff was present, in person or by counsel, when the case was assigned for trial, and made no objection thereto, he would properly be held to have waived his right to demand a continuance; and, as there was a dispute on this point, we are not inclined to interfere with the order of the trial court overruling the motion.

We think it proper to say, however, that, there having been no notice of the appeal, we do not think the statute (Code, section 4560) required the plaintiff to file 2. appeal: notice: con- • tinuance. any formal' motion for continuance, or to - . . _ . make any appearance whatever m order to prevent the case being brought on for trial at the first term. In other words, without a notice the cause properly stands for continuance by operation of law, unless there be a waiver or voluntary appearance. *McCormick v.*Bishop, 3 G. Greene, 99; *Quillan v.*Windsor, 6 Iowa, 396; *Bond v. Davis,*37 Iowa, 163.

II. The defendant was a witness in his own behalf, and after testifying that he was, and for some time had been, in the employ of the Chicago & Northwestern Kail-3 garnish-tSaLnTevi-dence-way Company, was permitted to testify, over plaintiff’s objections, that he was familiar with the rules and custom of said railway company, and that employes who allowed'their wages to be garnished were liable, to be dismissed from said employment. .This testimony was, in substance, once or twice repeated, and error is assigned thereon. It should have been excluded. The defendant had alleged the garnishment to be malicious, and asked damages accordingly; and, if it 'was claimed that by reason of such garnishment he had in fact been dismissed from the company’s service; it is possible the matters testified to would have been pertinent, especially if there was anything tending to show *237that plaintiff knew of such regulation or practice, and brought the suit for the purpose of depriving defendant of employment. There is, however, no .allegation of this’ kind, and, so far as shown, defendant still holds his position with the railway company. The evidence was therefore both immaterial and irrelevant. Other rulings upon the introduction of testimony are complained of, but we think them without merit.

III. Of the instructions excepted to, we will notice the sixth and tenth only. The sixth paragraph was in part as follows: “You are instructed that if you find from 4. wrongful, garnishment: instruction, the evidence at the time the plaintiff com-i.-i» *•¡in*menced this suit before the justice of the peace, which .was on the 18th day of February, 1901, that the defendant was not owing the plaintiff any amount for board and lodging, or, if he was, the amount was less than $5, then the suing out of said writ of attachment would be unlawful and wrongful, and the defendant would be entitled to recover of the plaintiff the actual damages resulting from the suing out of said writ of attachment.” It will be observed that this proposition makes the attachment wrongful if the jury find that at the date of the writ defendant was owing plaintiff less than $5. . The statute (Code, section 4579) provides that in attachment proceedings in justice’s court “the petition must be verified and claim more than five dollars and if a less sum is recovered the plaintiff shall pay all costs of the attachment.” Under this provision, it is the amount of the “claim,” and not the amount recovered, which is the test of the right to sue out the writ; and, if less .than, $5 be recovered, the penalty is the, payment of the costs thus occasioned. What may be the rule where a party, knowing that his-just claim is less than $5, demands a larger sum for the mere purpose of obtaining the writ, we need not undertake to decide, for that question is not presented by the instruction we are now reviewing. In our judgment, it cannot be said, *238as a matter of law, that, because the jury find the actual indebtedness of defendant to be less than $5, the attachment is therefore wrongful, and thus subject the plaintiff to general damages, in addition to the costs mentioned in section 4579. The tenth paragraph of the charge contains the same error to which we have just adverted, and we need not farther consider it. Further reference to the arguments of counsel is unnecessary, as what we have already said is decisive of the appeal.

The judgment of the district court is REVERSED.