#### L. A. Britson v. L. J. Tjernagel, John Swan and The City National Bank, Appellants.

Wrongful Attachment of Land: Damages. A counterclaim for damages by reason of a wrongful attachment of land should not be submitted to the jury where no damage is proven. (2)

Misconduct of Counsel: Bill of Exceptions. Misstatements in argument of counsel can not be reviewed on appeal unless preserved by bill of exceptions. Affidavits filed in the trial court will not be considered. (3)

Newly Discovered Evidence. Where there is a conflict as to the existence of newly discovered evidence which is largely cumulative, the discretion of the trial court in refusing a new trial will not be interfered with. (4)

*357
      *Appeal from Story District Court.*— Hon. S. M. Weaver, Judge.

Monday, February 5, 1894.

Action at law to recover the sum of two hundred ■dollars which plaintiff alleged he deposited with the defendant hank. The defendants denied that the alleged deposit was made. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendants *appeal.*

Affirmed.

*J. F. Martin*for appellants.

*Funson S Gifford*for appellee.

Rothrock, J.

I. The Citizens’ Bank, defendant, is located at Story City, and is owned by the defendants Tjernagel and Swan. In 1891 the plaintiff was •engaged in the hardware business at a village named Roland, a few miles from Story City, and he did his banking business with said bank. He claims that he delivered to the defendant Tjernagel the sum of two hundred dollars in currency, at Roland, to be deposited in the bank, and that he received no credit for said money. There is no question made as to the sufficiency •of the evidence to authorize a verdict for plaintiff.

II. When the plaintiff commenced the action he sued out a writ of attachment on the ground that the defendant- Tjernagel was about to remove permanently- out of the county, and had property not exempt from execution, which he refused to apply to the payment or securing of the debt due to the plaintiff, and that he was about to convert his property into money for the purpose of placing it beyond the reach of his creditors. The attachment was levied upon eighty acres of land. The defendant Tjernagel filed a counterclaim, in which he demanded damages of the *358plaintiff for wrongfully suing out the attachment. The-counterclaim did not deny the grounds of the attachment set out in the petition. It was based upon the-ground that the attachment was wrongfully sued out, because there was no indebtedness due from the defendants to the plaintiff. When the case was submitted to-the jury the court withdrew the counterclaim from the-consideration of the jury. It is claimed this action off the court was erroneous. We think the ruling of the-court was correct upon the ground that there was no competent evidence of any damages by reason of the-attachment. There was no evidence that the defendant was in any way damaged by the levy of the attachment upon his land.

III. The defendants filed affidavits which tended to show that plaintiff’s counsel, in his argument to the-jury, made false statements, which were not warranted by the evidence and which were greatly to the prejudice of the defendants. A new trial was asked on. account of this misconduct. We think the court rightly overruled the motion on this ground. It does not. appear that these affidavits were made part of the bill of exceptions. Where misconduct of an attorney in argument is relied on for reversal on appeal, it should be shown by bill of exceptions, and not by affidavits filed in the trial court. *Rayburn v. Railway Co.,*74 Iowa, 637, 35 N. W. Rep. 606, and 38 N. W. Rep. 520; *Hall v. Carter,*74 Iowa, 364, 37 N. W. Rep. 956; *Fowler v. Town of Strawberry Hill,*74 Iowa, 644, 38 N. W. Rep. 521.

IV. A new trial was asked upon the ground off newly discovered evidence, which was supported by affidavits. The affidavits as to alleged newly discovered evidence were, for the most part, contradicted by counter affidavits filed by the plaintiff. Much of the-newly discovered evidence was cumulative, and, in our *359opinion, the court did not abuse its discretion in refusing a new trial for this cause. The judgment of the district COUrt ÍS AFFIEMED.