Fuehr v. Ewert & Richter Express & Storage Co.

• Decision Date: 23 June 1917
• Docket Number: 31452
• Citation: 163 N.W. 347,180 Iowa 518
• Parties: FRANK FUEHR, Appellant, v. EWERT & RICHTER EXPRESS AND STORAGE COMPANY, Appellee
• Court: Iowa Supreme Court

163 N.W. 347

180 Iowa 518

FRANK FUEHR, Appellant, v. EWERT & RICHTER EXPRESS AND STORAGE COMPANY, Appellee

No. 31452

Supreme Court of Iowa, Des Moines

June 23, 1917

Appeal from Scott District Court.--M. F. DONEGAN, Judge.

ACTION on a judgment entered in the justice court by W. E. Harlan Esq., of Gray Township in the county of White and state of Arkansas resulted in the dismissal of the petition. The plaintiff appeals.

Affirmed.

Cook & Balluff, for appellant.

Bollinger & Block, for appellee.

LADD J. GAYNOR, C. J., EVANS and SALINGER, JJ., concur.

OPINION

LADD, J.

This action was begun March 5, 1915, and is based on a judgment entered in justice court in White County, Arkansas, in words following:

"On the 12th day of September, 1914, the plaintiff filed before me his cause of action against defendants for $ 188.50. Thereupon, a writ of attachment was issued against the defendants, returnable on the 17th day of October, 1914, at 10 o'clock A. M., and delivered to the constable of Gray Township. Now on this day comes the plaintiff, Frank Fuehr, in person and by his attorneys, Brundidge & Neelly; also comes the defendant, Ewert & Richter Express and Storage Co., by their attorney, Eugene Cypert, and both parties announcing ready for trial, the jury being waived, this cause is submitted to the court sitting as a jury upon the pleadings filed in the cause, the testimony of Frank Fuehr. It is, therefore, by the court considered ordered and adjudged that the plaintiff do have and recover of and from the defendant, Ewert & Richter Express and Storage Company, the sum of $ 188.50 and his cost herein expended. And it further appearing that the Bank of Searcy having been garnished in this action, and it appearing that the bank has in its hands $ 81.07 belonging to the defendant, Ewert & Richter Express and Storage Co., it is by the court considered ordered and adjudged that said Bank of Searcy be and is hereby directed to pay over to the plaintiffs the sum of $ 81.07. Given under my hand on this 17th day of October, 1914. W. E. Harlan, J. P."

A transcript thereof duly certified was presented, and the only defense interposed was that the court was without jurisdiction, in that Eugene Cypert appeared in court for defendant without authority. It appears from the stipulation of facts on which the case was submitted, that the defendant is a corporation organized under the laws of Iowa, and that plaintiff is a resident of Arkansas. On and prior to September 4, 1914, the plaintiff had in storage at the warehouse of the defendant at Davenport, Iowa, certain household goods, and on the named day, at plaintiff's request, said goods were shipped to Searcy, Arkansas. A draft for the amount of the storage charges on bank at Searcy, Arkansas, with the bill of lading for the goods, was forwarded to the bank. Upon the arrival of the goods, plaintiff paid the draft and obtained the bill of lading, and immediately commenced action for the value of goods alleged not to have been returned, aided by attachment under which the bank was garnished. On being advised of this, otherwise than by service of process, and on the same day, October 1, 1914, one of defendant's officers took to the office of Bollinger & Block his copy of the warehouse receipt, hereinbefore referred to, and certain of his other papers and correspondence about said shipment of said goods, and advised James W. Bollinger of the commencement of said suit; but neither such officer nor any officer of the defendant ever instructed Bollinger & Block or any attorney to appear in said case before said Justice Harlan. It appears that such officer left such papers with said James W. Bollinger, and told said James W. Bollinger to settle the suit, and left the matter with said James W. Bollinger for attention; and further, that said officer told said James W. Bollinger to settle the matter and not get into any lawsuit.

On the same day, said Bollinger addressed and mailed the following letter:

"October 1, 1914.

"Bank of Searcy, "Searcy, Arkansas.

"Gentlemen In re Fuehr v. Ewert & Richter Express and Storage Company We are writing you in behalf of Ewert & Richter Express and Storage Company of this city. On September 4, 1914, our client shipped to Fuehr a certain lot of household goods which had been stored with them. This shipment was made by draft attached to bill of lading, and we understand that Fuehr paid the draft and got the goods from the railroad company and then brought suit by attachment against the Storage Company and garnished you. From correspondence between Mr. Fuehr and our client, we understand that he has a claim against the company for $ 188.50, consisting of one bundle of rugs lost, worth $ 185, one stool at $ 1.00, and one stepladder at $ 2.50. We wish you would do what you can to settle this thing up for us. Our company knows nothing of the bundle of rugs. As to the stool, you will find that it is listed in his bill of lading as crated with a library table. If he insists he didn't get it, allow the $ 1.00. As to the stepladder, our company never had the same and none was ever listed, and so, under his bill of lading receipt, which we are sending you herewith, we are not liable for that. As to the $ 185 for the bundle of rugs, under Clause 7 of the warehouse receipt, which we are also enclosing, and of which Fuehr has a copy, the company's liability is limited by contract to $ 50 for loss. So that, at the very most, $ 51 is the limit of any claim which he can have against us. We understand you were garnished in the sum of $ 81.07, the amount of the draft he paid you. Please, therefore, close the matter up with him by allowing him the sum of $ 51, and send us the balance less your fees. If you cannot make a settlement with him for us at...