Cox v. Allen

• Decision Date: 26 May 1894
• Citation: 59 N.W. 335,91 Iowa 462
• Parties: COX v. ALLEN.
• Court: Iowa Supreme Court

91 Iowa 462

59 N.W. 335

COX

v.ALLEN.

Supreme Court of Iowa.

May 26, 1894.

Appeal from district court, Wapello county; E. L. Burton, Judge.

Action for the recovery of specific personal property and damage for its detention. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals. Affirmed.Epps & Ennis and McElroy & Roberts, for appellant.

J. F. Blake and W. A. Work, for appellee.

ROBINSON, J.

The plaintiff was a resident of this state in the year 1890. In July of that year he went to the state of Missouri, where he lived until June, 1891. On the 2d day of that month he left Missouri, and returned to Ottumwa, about noon of June 6th, and at 10 o'clock in the evening of the same day the property in controversy, consisting of a team of horses, a harness, and wagon, was seized under a writ of attachment issued from justice's court, in an action in which the defendant in this case was plaintiff and the plaintiff in this case was defendant. The action was founded on an account for $59.02, and, after a trial in justice's court, judgment was rendered in favor of Allen for that amount. No appeal has been taken in that case. The petition in this action alleges that the property seized was exempt to plaintiff from attachment and execution for the reason that, when it was taken, he was a resident of this state, the head of a family, and habitually earned his living with the property. The petition also states that the property was purchased with money the plaintiff had received from the United States government as a pension. Judgment for the return of the property, and for damages in the sum of $150 for its detention, is asked. The answer denies that the property was exempt from seizure under the writ of attachment, and in the fourth division alleges that the right of plaintiff to the relief he demands was adjudicated in the action in justice's court. The jury found for the plaintiff, fixed the value of the property at $155, and found that he had been damaged by the wrongful detention thereof in the sum of $150. A motion for a new trial was overruled, and judgment was rendered in favor of the plaintiff for $305 and costs.

1. This action was commenced against the officer who had levied the writ of attachment, and was called for trial at the August term, 1892, of the district court. On the 19th day of September an application for a continuance until the next morning was filed in behalf of the defendant. The affidavit which supported it was made by a surety of Allen on an indemnifying bond, and shows the following facts: Allen resided in Missouri about 70 miles from Ottumwa, and a telegram had just been sent to him asking him to come at once. His only attorney, W. W. Epps, went to Monroe county two days before, to try an important case in justice's court, and in that case he was the only attorney for his client. That he knew that there were six or seven cases assigned for a hearing before this one, and had inquired and been informed that those cases would be ready for trial when called, and had not anticipated that this case would be called that day. That he would return that night. And that there had not been sufficient time in which to procure another attorney to proceed with the trial. The application for a continuance was overruled. The next day, after a portion of the evidence for the plaintiff had been submitted, Allen came into court, was substituted for the sheriff as defendant, filed an answer, and the trial proceeded without objection on his part. We cannot say that the court abused its discretion in overruling the application. It had knowledge of the condition of its business and of its customary methods of procedure, which we do not have. The affidavit upon which the application was based did not show due diligence to prepare for trial. It is not shown of whom Mr. Epps sought information in regard to the causes assigned for trial, nor that he had sufficient reason to rely upon the information he received. Moreover, we are of the opinion from the facts disclosed by the record that no prejudice resulted from his absence when the case was called.

2. The answer filed by Allen adopted the one the sheriff had filed, to which reference has already been made, and again pleaded a prior adjudication, and set out copies of the petition bond, writ of attachment, and returns thereof filed in justice's court. Allen thereafter filed an amendment to his answer, which was in the nature of a specific statement of the facts, upon which the claim of a prior adjudication rested. A motion to strike the amendment was sustained. We think the amendment was proper, and that it might well have been permitted to remain on file. But we are of the opinion that defendant was not prejudiced by the action of the court in striking it. A former adjudication was twice pleaded in his answer as it remained during the trial, and the defendant was permitted to introduce, without objection, evidence to sustain the allegations set out in the amendment which was stricken from the files.

3. On the trial in justice's court, Cox filed a motion to discharge the attachment, on the ground that the attached property was exempt from seizure for the payment of his debts, for the reason that he was a resident of this state and the head of a family when the property was taken, and that, by means of it, he habitually earned a living for himself and family. The motion was supported by affidavits, and it appears that there was other evidence, the character of which is not shown, introduced by the parties to the action. The defendant claims that there was an agreement between the parties by which oral...