First Nat. Bank of Manilla v. Schram

• Decision Date: 14 December 1926
• Docket Number: No. 37226.,37226.
• Citation: 211 N.W. 405,202 Iowa 791
• Parties: FIRST NAT. BANK OF MANILLA v. SCHRAM ET AL.
• Court: Iowa Supreme Court

202 Iowa 791

211 N.W. 405

FIRST NAT. BANK OF MANILLA

v.SCHRAM ET AL.

No. 37226.

Supreme Court of Iowa.

Dec. 14, 1926.

Appeal from District Court, Crawford County; R. L. McCord, Judge.

Action upon four promissory notes aided by attachment upon certain grain and live stock of the defendants. The defendants filed counterclaim for damages on account of the alleged wrongful suing out of the attachment. Verdict and judgment in favor of the defendants upon the counterclaim, and plaintiff appeals. Affirmed on condition.W. S. Moore, of Manilla, and Sims & Page, of Denison, for appellant.

L. W. Powers, of Denison, for appellees.

STEVENS, J.

Two of the notes in suit for $284 and $1,600, respectively, were executed by F. E. Schram to appellant. The other two notes for $876 and $900, respectively, were signed by F. E. Schram and either indorsed or signed jointly by Mrs. F. G. McCuen. The latter notes were payable to F. G. McCuen and were held by appellant merely for collection. The execution of the notes was admitted by F. E. Schram. Appellees also filed separate counterclaims, asking both actual and punitive damages upon the attachment bond. After the commencement of the action and before the trial, the notes were reduced to $227, which was the amount in controversy when the case was submitted to the jury. A verdict was returned in favor of F. E. Schram for $608.51 and in favor of the defendant D. E. Schram in the sum of $750 on the counterclaim.

[1] Appellant complains of the submission of the counterclaims to the jury. The complaint is bottomed upon appellant's contention that the evidence conclusively showed that no valid levy of the writ upon the property is shown, and that if a valid levy was, in fact, made, the levy was at once abandoned without resulting damage to either of appellees. It is conceded that an attachment bond was filed, writ issued, and notice of a purported levy served upon appellees. The record also shows the return of the sheriff, which certifies that he levied the writ upon the property described in the notice attached thereto. The property included corn in the field, hay in the mow and stack, a quantity of oats, some horses, cattle, and hogs. The sheriff did not take physical possession of the property, nor did he cause it to be segregated on the premises or removed therefrom. He did take an invoice thereof, all of which was pointed out to him by F. E. Schram in whose custody the property was left. F. E. Schram gave the sheriff a receipt for the property, the final sentence of which was as follows:

“And I hereby agree to preserve and to hold said property and deliver the same to said sheriff upon demand.”

Three days after the notice of the levy was served upon appellees, they executed a bill of sale conveying all of the attached property to one Edwin T. Poole, a friend and occasional boarder of the Schrams. The consideration expressed in the bill of sale is $10,000. Prior to the execution of the bill of sale, appellees had given a chattel mortgage on the same property to Poole to secure an alleged indebtedness of $10,000. Whether or not the failure of the sheriff to assume custody and control of the property rendered the attempted levy ineffectual, it is contended by appellees that it was binding upon appellant and cannot be made the basis for a defense to the counterclaims. The levy appears to have been treated as valid by the parties, but was possibly abandoned by appellant. Appellees testified that the bill of sale was intended as a mortgage only, and that title to the property did not pass to Poole. The point is ruled by Lee County Savings Bank v. Snodgrass Bros., 182 Iowa, 1387, 166 N. W. 680. The facts of the Snodgrass Case, in which the levy was sustained, are very similar to the facts of the case before us. See, also, Hamilton Bros. v. Hartinger, 96 Iowa, 7, 64 N. W. 592, and Cable Co. v. Israel, 177 Iowa, 579, 159 N. W. 241.

[2] One of the points urged by appellant is that neither of appellees suffered any damages. The cattle levied on were the property of D. E. Schram personally. They were pure bred and sold for breeding purposes. She claims that she was...