Bicklin v. Kendall

• Decision Date: 10 October 1887
• Parties: BICKLIN AND OTHERS v. KENDALL AND ANOTHER, INTERVENOR.
• Court: Iowa Supreme Court

72 Iowa 490

34 N.W. 283

BICKLIN AND OTHERS

v.KENDALL AND ANOTHER, INTERVENOR.

Supreme Court of Iowa.

October 10, 1887.

Appeal from district court, Louisa county; DAVID RYAN, Judge.

Action by attachment. Garrett intervened, claiming the property attached. After various proceedings, a judgment upon default was rendered against plaintiffs, in favor of the intervenor, from which plaintiffs appeal.S. L. Glasgow, Dodge & Dodge, and D. N. Sprague, for appellants.

E. W. Tatlock and Newman & Blake, for appellees.

BECK, J.

1. The facts of the case, briefly stated, are as follows:

In 1881, plaintiffs brought an action by attachment against defendant, Kendall; and certain goods were seized under a writ issued in the case. Garrett filed his petition of intervention in the action, claiming to be the owner of the goods, and praying that he may be so adjudged, and may recover costs. Plaintiffs answered this petition, denying Garrett's ownership of the property. At the first term of the court, in 1882, plaintiffs recovered judgment against defendant, Kendall, and an order was made for the sale of the property. At the same time the cause was tried upon Garrett's petition of intervention, and judgment rendered for plaintiffs. Garrett appealed, and the judgment was reversed. See 60 Iowa, 414, 14 N. W. Rep. 234. Pending this appeal, the goods were sold on execution, and the funds immediately paid to plaintiffs; no supersedeas having been taken on the appeal.

In 1884, after the cause was remanded, another trial was had, upon the petition of intervention, to a jury, and a verdict was rendered, finding the title and right of possession of the property in the intervenor. The verdict does not find the value of the property, or the intervenor's damages. Upon this verdict a judgment for costs was rendered. No other judgment was had thereon. Plaintiffs appealed from the judgment, which was affirmed. See 66 Iowa, 703, 24 N. W. Rep. 518. An execution was issued on the judgment for the costs, which was paid in full by plaintiffs. Afterwards the intervenor filed a motion for a judgment on the verdict for the value of the property, and ordering the restitution thereof, or its value. The court, upon this motion, rendered a judgment declaring that the intervenor is entitled to the possession of the property; and that one B. B. Cole is owner of the interest and rights of Garrett, and any further proceedings upon the judgment may be prosecuted in his name. The court did not determine the value of the property, and rendered no judgment therefor. This was in April, 1886. No appeal was taken from the judgment.

In February, 1887, the intervenor filed an amendment to his original petition of intervention, reciting the proceedings in the case, and alleging, among other things, that no judgment could have been rendered for damages withoutan amendment of the intervening petition, and claiming to recover for the destruction of intervenor's business, for the conversion of the goods maliciously and wrongfully, and for malicious trespass, alleged in the amendment. The plaintiffs moved to strike this amendment on various grounds, which are substantially to the effect that it was not made in time. The motion was overruled, and plaintiffs, standing on their motion, declined to answer the amendment. Thereupon a default was entered, and judgment rendered against plaintiffs for damages, as claimed by the amended petition. From the decision of the court overruling plaintiffs' motion to strike, and in entering a default and judgment, plaintiffs appeal.

2. The question involving plaintiffs' right to appeal from the order overruling the motion to strike the amended petition is raised by the intervenor. We think, under Code, § 3164, par. 4, which secures the right of appeal...