Associates Discount Corp. v. Held

• Decision Date: 15 October 1963
• Docket Number: No. 51046,51046
• Citation: 255 Iowa 680,123 N.W.2d 869
• Parties: ASSOCIATES DISCOUNT CORPORATION, Appellee, v. Harry F. HELD and Harold B. T. Brown, d/b/a Held and Brown Auto Service, Appellants.
• Court: Iowa Supreme Court

Page 869

123 N.W.2d 869

255 Iowa 680

ASSOCIATES DISCOUNT CORPORATION, Appellee, v. Harry F. HELD and Harold B. T. Brown, d/b/a Held and Brown Auto Service, Appellants.

No. 51046.

Supreme Court of Iowa.

Oct. 15, 1963.

John W. Pieters, Waterloo, for appellants.

Birdsall, Pickett & McLendon, Waterloo, for appellee.

MOORE, Justice.

Plaintiff's damage claim for conversion of an automobile was tried by the court upon the following agreed statement of facts:

1. The plaintiff is a corporation and is engaged in the automobile financing business and maintains an office in the City of Chicago, Illinois.

2. The defendants are residents of Black Hawk County, Iowa and own and operate, as a partnership, the business known as Held and Brown Auto Service.

3. On or about June 4, 1959 one Larry Fox purchased from Station Wagon Sales Incorporated of Chicago, Illinois a 1958 Mercury Station Wagon bearing Serial No. M 8ZF-515006 and that such purchase was made by a retail installment contract, a true copy of which is attached to the plaintiff's petition and is known as Plaintiff's Exhibit 'A' and that the parties hereto agree that such copy represents the true contract and may be received in evidence without further proof.

4. The plaintiff herein became the owner of the retail installment contract by way of purchase or assignment and paid therefor the sum of $2,994.60 and that they became the owner on July 1, 1959, and no payment was due at that time on contract.

5. At the time the plaintiff herein became the owner of the said retail installment contract the former owner or assignor released its lien from the title and the said lien was satisfied as to General Finance Corporation on July 1, 1959.

6. The plaintiff herein failed and neglected to note its lien on the title until May 6, 1960 on which date the plaintiff herein had its lien noted on the title and a corrected title was issued to the plaintiff herein showing the notation of its lien.

7. The plaintiff in recording its lien and having the same noted on the title as of May 6, 1960 complied in each and every respect with the laws of the State of Illionis with respect to its lien and interest in the said automobile.

8. The said Larry Fox was obligated under the said contract to pay the sum of $99.82 monthly, beginning on the 12th day of July, 1959 and the said Larry Fox made one payment on the said contract leaving a balance due to plaintiff of $2894.78.

9. The said Larry Fox in violation of the said contract, admitted herein, removed the said vehicle from the State of Illinois without permission of the plaintiff and brought the said automobile to Waterloo, Iowa.

10. The plaintiff herein had no knowledge of the whereabouts of the said Larry Fox or the motor vehicle herein described after the date the first payment was made.

11. On April 2, 1960 the said Larry Fox took the said automobile to the defendants' place of business for repairs, after the said automobile was involved in an accident.

12. The said defendants repaired the automobile at a cost of $152.17 and that the said Larry Fox never paid the said bill and the defendants retained possession of the said automobile, claiming an Artisan's Lien, which the plaintiff admits was prior and superior to its lien as far as the Held and Brown Auto Service is concerned.

13. After the Held and Brown Auto Service had retained the car in their possession for sixty days Mr. Held consulted the Waterloo Police Department and the State Highway Patrol to see if the car was stolen and got no information concerning the same.

14. After the defendants had held the car six months the defendants had an attorney write to the Motor Vehicle Department of the State of Illinois with respect to liens, and it is admitted that if such letter were written no answer was ever received.

15. The Held and Brown Auto Service then put the car up for Bailiff's Sale, after suit and judgment against Larry Fox, and followed the laws of the State of Iowa with respect to such sale and the sale was held at the Bailiff's office in the Municipal Court of Waterloo, Iowa as advertised.

16. The defendant, Harry Held, personally bid in the car at the Bailiff's Sale for the sum of $370.00 and that this sale was held on the 24th day of March, 1961; and that the money was paid into the Clerk of Municipal Court to apply on the judgment against Fox which was $422.02 plus costs.

17. The parties hereto agree that at the time the said Harry Held purchased the said automobile at the Bailiff's Sale the car had a value of $1395.00.

The trial court found plaintiff was entitled to recover the value of the car less the amount of defendants' lien. From judgment of $972.98 against them defendants have appealed. Plaintiff has cross-appealed.

I. This is a law action. Our appellate jurisdiction is confined to the correction of errors. Rule 344(a)(3), Iowa Rules of Civil Procedure, 58 I.C.A., requires a statement of errors relied on for reversal when the appeal presents questions of law. We have repeatedly held that an error not assigned presents no question for review and need not be considered upon appeal. Slippy Engineering Corp. v. City of Grinnell, 226 Iowa 1293, 1303, 286 N.W. 508, 513; Weimer v. Lueck, 234 Iowa 1231, 1240, 15 N.W.2d 291, 295; Miller v. Griffith, 246 Iowa 476, 483, 66 N.W.2d 505, 507; Osbey v. Nelson, 248 Iowa 571, 573-574, 81 N.W.2d 449, 451.

Neither party has assigned errors. Only from defendants' two brief points and plaintiff's one brief point are we able to learn of their complaints. However, we deem it our duty to dispose of appeals on their merits whenever it can be doen and have decided, as a matter of grace rather than right, to determine this case on the points raised in the briefs. We have done so in some prior cases. See Agans v. General Mills, Inc., 242 Iowa 978, 48 N.W.2d 242, 243; Lundy v. O'Connor, 246 Iowa 1231, 1234, 71 N.W.2d 589, 591; McBeth v. Merchants Motor Freight, Inc., 248 Iowa 320, 322, 79 N.W.2d 303, 304.

II. Defendants-appellants assert under their first brief point that under the provisions of chapter 95 1/2, section 3-202, Code of Illinois, plaintiff does not have a valid security interest. Then in their argument for the first time in this case they set out what purports to be the provisions of that Illinois Code section. Obviously this contention is contrary to the agreed statement, praticularly as found in paragraph 7 thereof. It attempts to raise an issue not presented to or considered by the trial court. The rule is well established that a party is not entitled to urge a...