Bixby v. Blair & Co.
| Decision Date | 17 June 1881 |
| Citation | 9 N.W. 318,56 Iowa 416 |
| Parties | BIXBY v. BLAIR & COMPANY ET AL |
| Court | Iowa Supreme Court |
Appeal from Fayette Circuit Court.
THE plaintiff commenced this action in replevin to recover of the defendant L. L. Farr, sheriff of Fayette county, a stock of goods and merchandise of the alleged value of $ 1,600, which it is averred is the absolute property of the plaintiff, and upon which the said Farr as sheriff wrongfully levied an attachment issued from the Superior Court of Cedar Rapids, in an action by William Blair & Company against one Billings. The petition demands the return of the property, or in case the same cannot be found, judgment for the value thereof, and for damages for said wrongful taking and detention. The petition also sets out the names of the sureties upon the official bond of the said sheriff, and exhibits a copy of the bond, but no original notice was served upon said sureties.
The defendant Farr appeared to the action, and on the 1st day of December, 1879, he filed his answer in which he claimed that he made the levy upon the property by virtue of a writ of attachment at the suit of William Blair & Company, against J R. Billings, and that Billings was the owner of the goods and that for the purpose of hindering, delaying and defrauding said Blair & Company, and other creditors, he made a sham sale thereof to the plaintiff, who made the pretended purchase with the intent to assist Billings in said fraud.
On December 3, 1879, the defendant Farr moved the court to substitute William Blair & Company as defendants in the action, and with his motion he exhibited the writ of attachment under which the levy was made, and filed his affidavit setting forth the facts as to the levy and the names of the real parties in interest. On the next day the said William Blair & Company, in the individual names of their partnership firm, made their application to be substituted as defendants, setting forth facts showing that the property in controversy was seized at the suit of said partnership firm. At the same time Blair & Company filed a bond for costs in the penalty of $ 250. These applications for substitution were overruled, to which ruling the defendants excepted. Afterward an amended application for the substitution of William Blair & Company was made jointly by Farr and William Blair & Company, and accompanied with an additional bond in the penalty of $ 500, conditioned for the payment of any judgment for costs or damages that might be rendered against William Blair & Company in said action. Thereupon the motion for substitution of parties defendant was sustained. To this ruling of the court the plaintiff excepted.
On the same day that the order of substitution was made, the defendants William Blair & Company filed their answer, in which they made substantially the same averments as were made in the answer of Farr, and thereupon the defendants filed a petition, affidavit and bond for the removal of the cause to the Circuit Court of the United States. The plaintiff filed objections to said petition, and the application to transfer the cause was denied, to which ruling the defendants excepted.
Thereupon the cause was submitted to the court, and judgment was rendered finding the plaintiff to be the owner of the property, and awarding him the possession thereof, and for costs.
Defendants appeal from the judgment, and from the order overruling the application for change of forum, and the plaintiff appeals from the order of substitution of the parties defendant. The defendants first appealed, and should, therefore, be designated herein as appellants.
REVERSED.
Hubbard & Clark and F. M. Dawley, for appellants.
Rickel West & Eastman and D. W. Clements, for appellee.
I. Appellants contend that the court erred in overruling the motion for substitution as it was originally presented. The application having been made by the sheriff and by the parties in whose favor the writ of attachment issued, and a bond for costs having been given, it may be this was all that was required under section 2574 of the Code. But this we need not determine, because although the defendants excepted to the rulings, they did not stand thereon, but amended the application by giving bond not only for costs, but for damages, and thereupon the order of substitution was made. Having succeeded in procuring what they desired in the way of substitution, the defendants cannot now complain that...
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