Brown v. West

• Decision Date: 31 July 1936
• Docket Number: 43397.
• Citation: 268 N.W. 525,222 Iowa 331
• Parties: BROWN v. WEST et al.
• Court: Iowa Supreme Court

268 N.W. 525

222 Iowa 331

BROWN v. WEST et al.

No. 43397.

Supreme Court of Iowa.

July 31, 1936

Appeal from Municipal Court of Des Moines; Don G. Allen, Judge.

This is an action to recover damages for the wrongful sheriff's sale of a radio which plaintiff, appellee, had sold to one J C. Shoemaker under a duly recorded conditional sale contract. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Neiman & Leake, of Des Moines, for appellants.

Lehmann, Hurlburt, & Hossfeld, of Des Moines, for appellee.

KINTZINGER, Justice.

On August 16, 1935, A. B. Brown, plaintiff, appellee herein sold a certain radio to one J. C. Shoemaker under a conditional sale contract, duly filed and recorded in accordance with the provisions of sections 10015 to 10020 of the Code of 1931 (chapter 211 of the Acts of the 42d General Assembly). The purchase price of the radio was $125, upon which there was due a balance of $110. Prior to that time the defendant West had secured a judgment in the district court of Polk county, Iowa, against said Shoemaker. After the purchase of said radio, and after filing and recording the conditional sale contract therefor, appellant West had the sheriff of Polk county levy an execution upon said radio under his judgment. Before the sale the sheriff was duly notified of appellee's claim to said property, and, after appellant filed an indemnifying bond to protect the sheriff he sold the property and credited the proceeds on the judgment.

Appellant contends that neither he nor the sheriff had either actual or constructive notice of the existence of the conditional sale contract at the time of the levy, because sections 10015 to 10020 of the Code of 1931, adopted as chapter 211 of the Acts of the 42d General Assembly, were invalid because not adopted in accordance with the requirements of section 17, article 3, of the State Constitution.

No other defense is alleged. As the record shows that the conditional sale contract and copy thereof had been duly filed and recorded, as required by sections 10015 to 10020, prior to the issuance of the execution, it necessarily follows that, if chapter 211 of the Acts of the 42d General Assembly was adopted in accordance with the provisions of the Constitution, the judgment of the lower court is correct.

The lower court held that the recording acts in question, adopted as chapter 211 of the Acts of the 42d General Assembly, were passed in substantial compliance with section 17, article 3, of the State Constitution, and entered judgment in favor of appellee in the sum of $110, with interest and costs. Hence the appeal.

Appellant contends that the court erred in holding that the acts in question were adopted in compliance with section 17, article 3, of the State Constitution.

Section 17, article 3, of the State Constitution, provides as follows: " No bills shall be passed unless by the assent of a majority of all the members elected to each branch of the General Assembly, and the question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays entered on the journal."

Appellant contends that the act in question was not adopted in accordance with the requirements of the constitutional provisions hereinabove referred to, and that the ruling herein should be governed by the case of Smith v. Thompson, 219 Iowa 888, 258 N.W. 190. As pointed out in that case, however, this court said (219 Iowa 888, loc.cit. 900, 258 N.W. 190, 197): " Under the record before us, it must be held that the act in question was never before the House for an aye and nay vote on its final passage, and that the adoption of the fragmentary report of the conference committee did not suffice and did not meet the constitutional requirement that a vote ‘ shall be taken immediately upon its last reading, and the yeas and nays entered on the journal." ’

The bill in question here was introduced and adopted as Senate File No. 110 in both branches of the Legislature, and, when finally adopted by a majority vote in both Houses by an aye and nay vote, the record thereof was duly entered on the journal in each House. It was hereafter duly enrolled and signed by the Governor on April 6, 1927. The procedure in the case at bar was unlike that followed in the case of Smith v. Thompson, 219 Iowa 888, 258 N.W. 190.

With reference to the case of Smith v. Thompson, supra this court, in the recent case of Scott v. State Board of Assessment and Review, 267 N.W. 111, loc. cit. 114, said: " The opinion, after holding the act unconstitutional [on other grounds], * * * proceeds to consider the further question whether the Legislature in passing the act had...