Blotcky v. Caplan

• Decision Date: 23 May 1894
• Citation: 91 Iowa 352,59 N.W. 204
• Parties: BLOTCKY ET AL. v. CAPLAN ET AL. (LEVINSTON ET AL., INTERVENERS).
• Court: Iowa Supreme Court

91 Iowa 352

59 N.W. 204

BLOTCKY ET AL.

v.CAPLAN ET AL. (LEVINSTON ET AL., INTERVENERS).

Supreme Court of Iowa.

May 23, 1894.

Appeal from district court, Pottawattamie county; H. E. Deemer, Judge.

Plaintiffs brought this action at law, aided by attachment, to recover from the defendants, Caplan & Nathan, for goods sold and delivered. The attachment was levied upon a certain stock of merchandise, as the property of the defendants. Levinston Bros. intervened, claiming to own the merchandise seized under the attachment. They alleged that they purchased and took possession of the stock of merchandise formerly owned by Caplan & Nathan on the 28th day of May, 1891, and on the same day added to said stock merchandise of their own, of the value of $670, and that all of said goods were taken from them, under the attachment, on the ______ day of ______, 1891. They also alleged service of notice of ownership. Plaintiffs, in answer to said petition of intervention, admit the levy, that the goods had been sold for $1,545, and that notice of ownership had been served by interveners. They deny every other allegation of said petition, and aver that, if interveners ever had possession of said goods, it was under an agreement with defendants, for the sole purpose of hindering and delaying the defendants' creditors, and for the purpose of defrauding the plaintiffs, and other creditors of defendants; that, if any agreement of purchase and sale was made between interveners and defendants, the same was the result of a secret conspiracy on their part to place the goods beyond the reach of the plaintiffs and other creditors of defendants. The merchandise was sold under the attachment, as perishable, and the proceeds held to await the result of this litigation. The case was tried to a jury, and a verdict and judgment for the plaintiffs. Interveners appeal. Affirmed.Fremont Benjamin, for appellants.

Byers & Lockwood and Frank Shinn, for appellees.

GIVEN, J.

1. On the trial, plaintiffs offered in evidence Exhibit No. 24, being a notice of ownership from interveners to the sheriff. Appellants objected “for the reason that the same is incompetent, irrelevant, and immaterial, for that the same is admitted in the pleading.” It is now insisted that the court erred in overruling the objection, because the paper offered was only a copy. The objection was not upon that ground, but upon the ground that it was admitted in the pleading, and therefore incompetent, irrelevant, and immaterial. The giving of this notice was admitted in the pleading. Therefore, there could be no prejudice in admitting it in evidence.

2. At the conclusion of the testimony, interveners moved for a verdict upon the ground that there was no evidence upon which the jury could find for the plaintiff. This motion was overruled, and the ruling assigned as error. It is not required that we should here discuss the evidence bearing upon this question. We have examined it with care, and reach the conclusion that under it the motion was properly overruled and the case allowed to go to the jury. We are also of the opinion that there was no error in overruling appellants' motion for a new trial upon the ground that the verdict is not sustained by the evidence.

3. Appellants complain of the second, third, fourth, ninth, and tenth paragraphs of the charge to the jury. It is contended that there was no dispute in the evidence...