
    Stevens v. Holmes.
    1. Instructions: repetition not required.
    2. Evidence to Support Finding of Court.
    3. Errors not Assigned not Considered.
    
      Appeal from Harrison District Court.
    
    Tuesday, December 2.
    Action on an account for goods sold, and on a promissory note. The plaintiff caused an attachment to issue. The defendant pleaded that the attachment had been wrongfully and maliciously sued out, whereby he had been greatly damaged. Trial by jury, judgment for plaintiff, and defendant appeals.
    
      William Magden and S. H. Cochran, for appellant.
    
      Smith & Smith, for appellee.
   Seevers, J.

It is said the court erred in refusing an instruction asked by the defendant. There was no error in this respect, because the court, in the charge, instructed the jury as asked by the defendant in the instruction refused. The jury found specially that the writ of attachment was not wrongfully sued out. It is said this finding is contrary to the evidence. We do not concur in this proposition. It is said the verdict is contrary to the instructions of the court, because the evidence shows that property exempt from execution was attached. But we are . clearly of the opinion there was evidence upon which the verdict can be sustained. After verdict, the defendant filed a motion to discharge the property, because it was exempt from execution. This motion was supported by the affidavit of the defendant.

It is said the court erred in overruling the motion, and in ordering the property attached to be sold. But counsel have failed to state any sufficient reason why this should be done, after the j ury had found that the property was not exempt. The plaintiff was a surety on a note for the defendant. The former purchased the note, and this note is one of the causes of action for which judgment was rendered. It is said that no recovery should have been permitted on the note, because the plaintiff’, cannot maintain an action thereon, but only on the implied promise to reimburse the plaintiff, if he was compelled to pay the note. We do not feel called on to determine this question, because no such error has been assigned. The judgment of the district court must be

Affirmed.  