Anderson v. Kinley

• Citation: 90 Iowa 554,58 N.W. 909
• Parties: ANDERSON v. KINLEY, SHERIFF.
• Decision Date: 11 May 1894
• Court: United States State Supreme Court of Iowa

90 Iowa 554

58 N.W. 909

ANDERSON

v.KINLEY, SHERIFF.

Supreme Court of Iowa.

May 11, 1894.

Appeal from district court, Linn county; J. H. Preston, Judge.

Action at law to recover the possession of specific personal property. There was a trial by jury, and a verdict and judgment for defendant. The plaintiff appeals. Affirmed.N. W. McIvor and Jamison & Burr, for appellant.

Rickel & Crocker, for appellee.

ROBINSON, J.

The plaintiff is the receiver of the Union Investment Company, a corporation organized under the laws of this state. The petition alleges that the company is the unqualified owner of a miscellaneous collection of personal property, particularly described, which is held by the defendant, as sheriff of Linn county, by virtue of an execution issued on a judgment of the district court of that county, rendered in favor of Louis Fitzgerald, trustee, and against George W. Wilson. The answer denies the allegation of ownership, and avers that whatever conveyances of the property have been made to the company were so made or procured by Wilson with the intent, on his part, which was concurred in by the company, to hinder and defraud his creditors. The evidence shows that the property was taken by the defendant, as alleged in the petition, and that notice of ownership was served on him before this action was commenced. Judgment was rendered on the verdict in favor of the defendant for costs.

1. The sixth paragraph of the charge to the jury is as follows: “You are instructed that if you find from the evidence that after the levy, if any such levy was made by the sheriff upon the legal blanks in controversy, the same were taken from the possession of the said sheriff, by the mortgagee thereof, upon a mortgage made by the owner thereof prior to the date of said levy, then, as to such property, you will find that the plaintiff cannot, in any event, recover.” The appellant contends that this was erroneous, for the reason that there was no evidence to justify it. We think the reason was not well founded. The evidence that the blanks were taken in the manner contemplated in the paragraph set out was ample to justify a finding of the jury that they were so taken. It is urged, further, that the paragraph was not applicable to any issue presented by the pleadings. It is sufficient to say that the objection thus made is not presented by the assignment of errors.

2. The seventh paragraph of the charge is as follows: “The defendant claims that whatever conveyances may have been made of said property, or any part thereof, to said Union Investment Company, were made, or procured to be made, by G. W. Wilson, and were made with intent upon the part of said Wilson...