Goldsmith v. Willson

• Decision Date: 14 December 1885
• Citation: 25 N.W. 870,67 Iowa 662
• Parties: GOLDSMITH, ASSIGNEE, v. WILLSON ET AL
• Court: Iowa Supreme Court

25 N.W. 870

67 Iowa 662

GOLDSMITH, ASSIGNEE, v. WILLSON ET AL

Supreme Court of Iowa, Des Moines

December 14, 1885

Appeal from Sac District Court.

ACTION for the recovery of specific personal property. On the ninth day of January, 1884, one George R. Davis executed and delivered to plaintiff an instrument which purports to be a general assignment of all his property for the benefit of his creditors. This instrument was filed for record on the day of its execution, and on the eighteenth of the same month plaintiff filed his bond as assignee. The defendant Willson is sheriff of Sac county, and on the day on which said assignment was executed he received a writ of attachment which was issued in an action brought by M. Reigelman & Co. against said George R. Davis; and on the twelfth of said month he levied said attachment on a portion of a stock of goods in a store building in which Davis had carried on business as a merchant before the assignment to plaintiff. On the fifteenth of January, Kohn Bros. instituted a suit against Davis, in which they also sued out a writ of attachment, which was placed in Willson's hands for service, and was by him levied on the balance of the stock of goods in said store building. Plaintiff thereupon brought this suit against the sheriff for the recovery of the attached property, claiming possession under said deed of assignment. At the next term of the district court the attaching creditors appeared, and made application to be made parties defendant. This application was granted by the court and they then filed separate answers, after which they moved for separate trials, and this motion was sustained. The issue between plaintiff and Reigelman & Co. was disposed of at that term, but Kohn Bros. files a motion for a continuance of the cause as to them, which was sustained, and the issue between them and plaintiff came on for trial at the next term. In their answer they allege that Davis, at the time he executed the deed of assignment under which plaintiff claims, and as part of the same transaction, also executed a chattel mortgage on said stock of goods to the Marion County National Bank, and that he intended thereby to give said bank a preference over his other creditors, and they say that for this reason said assignment is not an assignment for the benefit of all of the creditors in proportion to the amount of their claims, and that it is therefore void. They also allege that said assignment was executed by Davis, and accepted by plaintiff, with intent to hinder and delay and defraud the creditors of Davis. The answer also contains a general denial of the allegations of the petition. On the trial plaintiff introduced in evidence the deed of assignment and an inventory of the estate and a list of creditors, which had been filed in the office of the clerk of the district court; also his bond as assignee. He also introduced evidence tending to prove the value of the stock of goods in the aggregate; also the value of that portion of the stock which was seized on Reigelman & Co.'s attachment. But there was no evidence of the value of the specific articles constituting the stock. He also proved by the sheriff that he had had the stock of goods in his possession, and that plaintiff had served notice on him of his claim. Davis, the assignor, was one of the witnesses examined by plaintiff as to the value of the stock of goods, and on his cross-examination he admitted that on the second of January he executed a chattel mortgage to the Marion County National Bank on the stock of goods in question, to secure an indebtedness which he was owing to said bank. But the mortgage was not introduced in evidence. When plaintiff rested, defendants moved the court to direct the jury to return a verdict for them, which motion was sustained by the court, and judgment was entered on the verdict which was returned in obedience to this direction of the court. Plaintiff appeals.

REVERSED.

Charles D. Goldsmith, appellant, pro se.

S. M Ellwood and Wright, Baldwin & Haldane, for appellees.

OPINION

REED, J.

I.

The grounds of the motion upon which the court directed the verdict for defendants are--First, that plaintiff had not proved the value of any article to recover possession of which this action was brought; second, plaintiff had not proved that the property described in his petition was unlawfully detained by defendant Willson in Sac county, or that it was so detained at the time of the commencement of the action; third, plaintiff's evidence shows that the title to and right of possession in the property in question were vested at the time of the commencement of the action in the Marion County National Bank.

It is alleged in the petition that the value of the whole stock at the time the first attachment was levied was $ 5,668.10, and that the value of that portion of it which was taken on Kohn Bros.' attachment was $ 5,032.86. Attached to the petition is what is alleged to be an inventory of the stock, and opposite each item on the inventory is set out what is alleged to be its value; and the petition alleges that certain of the articles enumerated in the inventory were taken on the attachment of Reigelman & Co., and that all the other articles were taken on the writ sued out by Kohn Bros. As stated in the statement of the case, plaintiff introduced evidence from which the value in the aggregate of the goods taken on the Kohn Bros. attachment might have been determined, but gave no evidence of the value of the specific articles. The question raised by the first assignment of the motion is whether plaintiff is entitled to recover in this form of action without proving the value of the articles composing the stock of goods of which he seeks to obtain possession.

It is provided by section 3238 of the Code that the jury, in actions for the recovery of specific property, must determine the value of the property whenever by their verdict there will be a judgment...