Eldridge v. Herman, 63005

• Citation: 291 N.W.2d 319
• Decision Date: 23 April 1980
• Docket Number: No. 63005,63005
• Parties: Richard ELDRIDGE, Appellant, v. Ronald J. HERMAN, Appellee.
• Court: United States State Supreme Court of Iowa

Page 319

291 N.W.2d 319

Richard ELDRIDGE, Appellant, v. Ronald J. HERMAN, Appellee.

No. 63005.

Supreme Court of Iowa.

April 23, 1980.

Michael H. Irvine of Irvine & Currell, Cedar Rapids, for appellant.

Allan R. Bohanan of Lucas, Nolan & Bohanan, Iowa City, for appellee.

Considered by HARRIS, P. J., and McCORMICK, ALLBEE, McGIVERIN, and LARSON, JJ.

McCORMICK, Justice.

This case involves competing claims to $70,900 which defendant Ronald J. Herman found in the basement of a house in Iowa City. Herman deposited the money with the county auditor and followed the lost property procedures in chapter 644, The Code. Plaintiff Richard Eldridge subsequently brought this declaratory judgment action seeking to establish his ownership of the money. After a trial to the court, the trial court held Eldridge failed to prove ownership and quieted title to the money in Herman. Upon Eldridge's appeal, we affirm.

The questions are whether the trial court erred in drawing an adverse inference against Eldridge's ownership claim because he invoked his privilege under U.S. Const. amend. V, whether the court erred in finding the money was lost property, and whether the money should have been awarded to the county.

The legal or equitable nature of a declaratory judgment action is determined by the pleadings, the relief sought, and the nature of the case. Frederick v. Shorman, 259 Iowa 1050, 1055, 147 N.W.2d 478, 482 (1966). A claim of ownership under chapter 644 is triable as an ordinary proceeding. See § 611.6; Tonini v. Maloney, 228 N.W.2d 91, 92 (Iowa 1975). The action is analogous to trover or replevin. Moreover, this case was docketed and tried at law. Therefore we review it under legal principles.

Applicable principles are delineated in Farmers Insurance Group v. Merryweather, 214 N.W.2d 184, 186-87 (Iowa 1974). Any ambiguity in the trial court's findings is resolved in favor of the judgment. Id. at 186. Because no motion for enlargement of findings was made under Iowa R.Civ.P. 179(b), we assume all unstated findings necessary to support the judgment were adverse to Eldridge. See Grall v. Meyer, 173 N.W.2d 61, 65 (Iowa 1969). See generally Bahnsen v. Rabe, 276 N.W.2d 413, 414 (Iowa 1979). Furthermore, when the court denies recovery in a law action because of a party's failure to carry the burden on an issue, we will not interfere on appeal unless we find the burden was carried as a matter of law.

I. Eldridge's ownership claim. Eldridge contends that the trial court erred in relying in part upon his claim of privilege against self-incrimination in holding he failed to prove he owned the money which Herman found. He also contends we should find he met his burden of proof to establish ownership.

The record shows that Eldridge was the tenant in the downstairs apartment and Herman and Jann Ream were tenants in the upstairs apartment of an older two-story house in Iowa City owned by John T. Nolan. Neither tenancy included the basement, but Nolan did not object to the tenants' use of it. Entry to the basement could be made from Eldridge's apartment or through an outside door. Both entries led down to a laundry room which the parties used. The basement had three other rooms, the largest of which was cluttered with cardboard boxes, pieces of metal, scraps of wood and other debris. A metal workbench was located under a light in about the middle of the large room.

Herman worked on a motorcycle in the large room during the winter of 1976-77. In February 1977 Herman obtained Nolan's permission to haul the trash from the basement, and he cleaned part of it on February 19 and 20. He had cleaned up to but not under the metal workbench in the large room. On the evening of the 20th he was sweeping the area of the floor in the large room which he had cleared when he saw a plastic bag of money under the workbench. It was visible from three to five feet away. He found two plastic ziploc bags containing currency there. He took the bags to his apartment and, with Ream's help, counted the money. It consisted of $100, $50, $20, and $10 bills, held in units of $1000 by rubber bands and paper clips, and with $1000 units bound to others with rubber bands. They counted approximately $70,000.

Concerned for their safety, Herman and Ream put the money back where Herman had found it. On the next evening Herman was again working on his motorcycle in the basement. Eldridge came downstairs and complimented him on how good the basement looked. Herman told him he was going to finish cleaning the basement on the following weekend so that if Eldridge had anything he wanted hauled away he could leave it by the cellar door.

The money was still there when Herman resumed cleaning the basement on February 25. He decided to move it for safekeeping, so he took it to his apartment and hid it under a loose floor board in the attic. On March 3 he turned the money over to the police, who gave him a receipt for $70,900 and placed the money in a bank vault.

Herman then gave an affidavit to the county auditor in accordance with section 644.7, advertised the finding pursuant to section 644.8, and filed proof of the advertising with the auditor as required by section 644.9. The proof of advertising was published with the minutes of the proceedings of the board of supervisors as provided in section 644.10.

Eldridge learned on March 3 that Herman had found the money but did not claim it was his until he did so through an attorney approximately six months later. He brought the present action one day prior to the expiration of the twelve-month limitation period of section 644.11. In his petition he asserted he owned $85,000 in cash which he had stored in a ziploc tobacco pouch in the basement of his residence. He accused Herman of converting $14,100 of the sum to his own use. Eldridge asked the court to declare him the owner of the money, to find the money was not "lost property," to deny Herman any reward, and to award him judgment against Herman of $14,100.

At trial Eldridge testified he hid the money in the basement in the morning of February 17. He described the manner in which the money had been bundled in substantially accurate detail. However, he did not say he used paper clips in sorting the money. In addition, he said he put it in three rather than two ziploc bags, insisted the total was $85,000, and asserted he placed the three ziploc bags in a larger bag which he hid beneath the bench under a stack of wood. He said he had obtained the money through the sale of "illicit commodities" in January and February 1977. When Herman's counsel attempted to cross-examine him concerning how he allegedly acquired the money, he repeatedly asserted his privilege against self-incrimination.

Counsel for Herman moved to dismiss the petition because of the claim of privilege but did not move to strike Eldridge's testimony on direct examination.

Substantial evidence was received from other witnesses that Eldridge was a suspected narcotics dealer, the home was under police surveillance, and persons had been observed entering and leaving the premises through the outside basement door on numerous occasions in January and February 1977. They usually stayed in the basement for only a few minutes.

In ruling against Eldridge on the merits of his petition, the trial court refused to credit his testimony because of his refusal to respond on cross-examination to questions which would require him to tell how he got the money. The court said: "The lack of information given by Mr. Eldridge and the circumstances surrounding 730 North Linn Street could lead one to believe there are several explanations as to the ownership and person or persons who could claim the money. By (his) refusing to give sufficient testimony concerning how the money was earned or accumulated, the Court could infer that the claim may be false."

We read the court's ruling as a holding that Eldridge did not meet his burden...