Eller v. Myers

• Decision Date: 15 October 1940
• Docket Number: 45285.
• Citation: 294 N.W. 232,229 Iowa 114
• Parties: ELLER v. MYERS et al.
• Court: Iowa Supreme Court

294 N.W. 232

229 Iowa 114

ELLER v. MYERS et al.

No. 45285.

Supreme Court of Iowa.

October 15, 1940

Appeal from District Court, Polk County; Loy Ladd, Judge.

Action at law to replevin moneys allegedly in the hands of defendant Walter Priebe as Clerk of the Municipal Court of Des Moines. Defendants' demurrer to plaintiff's petition was sustained. Plaintiff not pleading further, a judgment was rendered against him dismissing the action. Plaintiff has appealed.

Affirmed.

RICHARDS, C. J., dissenting in part.

Guy A Miller, of Des Moines, for appellant.

Stipp Perry, Bannister & Starzinger, of Des Moines, for appellees.

RICHARDS Chief Justice.

The question here is whether the petition was demurrable on one or more of the grounds found in the demurrer. The petition contained these averments: That defendant Priebe is clerk of the Municipal Court of Des Moines, " in which court building the funds or money (the subject matter of this action) is kept and controlled by said Walter R. Priebe as Clerk of said Municipal Court" ; that plaintiff was at all times the absolute owner of a certain judgment No. 81334 entered in said court on November 12, 1937; that said judgment was paid to said clerk in July, 1939, " and thereupon and thereafter the said C. J. Eller was, and is the absolute owner of the proceeds of said judgment, interest and costs advanced or credited to plaintiff, which costs were paid * * * into the said Clerk's office with said judgment in the approximate sum of $100.00. That said judgment was entered in the approximate sum of $868.00, and there is still in the hands of said Clerk in addition to the aforesaid costs, the sum of $575.00, and the value of said property or funds is its face value or the approximate sum of $700.00. That the plaintiff herein is, and has been at all times, entitled to the immediate possession and use thereof, and said Clerk would have promptly paid the same to the plaintiff herein in due course pursuant to the rules of said Clerk's office, if it had not been for the fictitious and pretended claims of defendant herein, A. J. Myers, who * * * filed a pretended Attorney Fee lien on said judgment in the sum of $575.00, and made claim to said costs, * * *." It was further alleged in the petition that if said lien ever had any force it has long since been terminated by Section 10926, Code 1935, as well as for other assigned reasons; that said Myers has refused to release said lien and has wrongfully and wilfully detained said money. Judgment was demanded against the defendants " for immediate possession of $675.00, said funds, and judgment for damages both actual and exemplary in the sum of One Thousand Dollars" and for costs. In an amendment plaintiff alleged that said sum of $575 and the balance of court costs advanced by plaintiff in the sum of approximately $100 have been segregated and specifically identified by the said Myers noting his pretended lien on the docket or records of said Municipal Court clerk and by making claim to said costs and refusing to consent to same being delivered to plaintiff; that in July or August, 1939, upon demand being for said money said clerk stated he would not deliver said fund or any part thereof to either plaintiff or Myers until he had an order of the court or an agreement of the parties therefor, and that he (said clerk) would hold said fund until he received such authority; that said Myers by his aforesaid conduct and said Priebe as clerk of said court by his aforesaid promises have forever estopped themselves from asserting that said money is not segregated and identified in such manner as to be the subject of an action of replevin in part or in toto, and from asserting that plaintiff cannot describe said money in denominations as same is in the hands of said clerk. In the amendment plaintiff prayed substantially as in the petition excepting that judgment for $1,000 actual and exemplary damages was demanded against defendant Myers, and excepting that in the prayer in the amendment the following was added: " In the event all of said funds, money, or any part of it cannot be delivered to plaintiff for any reason then plaintiff reserves the right to elect at the time the court enters its judgment on the jury's verdict to have judgment entered in the alternative against defendants and each of them for the value of such sum of such fund, if any, as is not delivered to plaintiff, * * *."

We turn now to what appears in the demurrer. Excepting that for convenience we have numbered four of its paragraphs (no numbering appearing in the demurrer), its content was substantially this:

" Come now the defendants, * * * and Demur to the petition of the plaintiff as amended, and as grounds therefor, show to the Court as follows:"

(1) " That the said Petition as amended shows upon its face that this is an action for the immediate possession of money paid to the defendant, Walter R. Priebe, as Clerk of the Municipal Court of Des Moines, Iowa, in satisfaction of a judgment rendered in said Court in a case entitled C. J. Eller, Plaintiff v. Preferred Accident Insurance Company, Defendant, Law No. 81334."

(2) " That said Petition as amended shows upon its face that the plaintiff herein is not seeking to recover the possession of certain specific money which has been segregated and set apart or specially identified."

(3) " That the filing by the defendant, A. J. Myers, of his attorney's lien, referred to in plaintiff's Petition as amended, does not in law or in fact operate to segregate and particularly identify the money, the possession of which the plaintiff is seeking in this cause; that the filing of said lien does not in law or in fact operate to so segregate and identify the money as to be the subject of an action of replevin."

(4) " That the facts stated in Plaintiff's Petition as amended do not entitle him to the relief demanded for the reason that money is not the subject of an action of replevin."

From the phraseology used it would seem that in demurrants' minds each of the paragraphs that we have numbered (1) to (4) was intended as a ground of the demurrer. In reading these paragraphs one...