Gollsbitsch v. Ranibon

• Decision Date: 05 February 1892
• Citation: 84 Iowa 567,51 N.W. 48
• Parties: GOLLSBITSCH v. RANIBON, SHERIFF.
• Court: Iowa Supreme Court

84 Iowa 567

51 N.W. 48

GOLLSBITSCH

v.RANIBON, SHERIFF.^*

Supreme Court of Iowa.

Feb. 5, 1892.

Appeal from district court, Shelby county; GEORGE CARSON, Judge.

Action to recover the possession of specific personal property. The cause was tried to a jury, and resulted in a verdict and judgment in favor of defendant. The plaintiff appeals.Benj. I. Sallinger, for appellant.

D. O. Stewart and Smith & Cullison, for appellee.

ROBINSON, C. J.

Plaintiff claims to be the absolute and unqualified owner of the property in controversy, which includes colts, cows, calves, steers, and heifers of the alleged value of $688. The defendant claims a right to the property under an execution levied thereon by him, which was issued on a judgment in favor of John Bell & Co., and against John Gollsbitsch, the husband of plaintiff. The defendant claims that the property in question belongs to the execution debtor, and that the alleged ownership of plaintiff is fraudulent. We have not been favored with an argument for the appellee.

1. The plaintiff filed a motion asking that John Bell & Co. and E. Lindsey be made additional parties defendant, and, before it was ruled upon by the court, she filed a reply, to which was attached interrogatories “to be answered by the defendants, or either of them.” She also filed an affidavit, in which she alleged that the subject-matter of the interrogatories was within “the personal knowledge of the opposite party, or some of them, or of their agents and attorneys, and that the answers thereto, if truly made,” would sustain her defense to the answer. Whether the reply was proper, and whether the interrogatories were of such a character as to require answers, are questions not before us for determination. The defendant, by way of answer, filed his affidavit alleging that he had acted in regard to the matters in controversy for E. Lindsey, and that Warren Gammon, attorney for Lindsey, had given him nearly all the information he possessed in regard to the case. He therefore filed answers to the interrogatories, made and verified by Gammon, and asked that they be permitted to stand as his answers. The interrogatories appear to have been filed with the expectation that the motion to make other persons parties defendant would be sustained, but it was overruled, and the interrogatories should be treated as requiring answers from the defendant. They were not addressed to the attorney for the judgment creditor, and he was not authorized to answer them, although the form of the affidavit attached to them by plaintiff gives some ground for claiming that she desired answers from the attorney, if he had greater knowledge of the facts called for than did the defendant. But the statute requires that the interrogatories be answered by a party to the action, and not by his attorney; and the answers, when given, are to be treated as a deposition. Code, §§ 2693, 2694. The party answering must distinguish between what is stated from his personal knowledge and what is stated merely from information and belief. Code, § 2697. When the party to whom the interrogatories are addressed is a corporation, the answers must necessarily be given by a duly-authorized officer or representative; but the same rule does not apply to such a case as this, where the party is in court, and competent to speak for himself. The party filing the interrogatories has a right to have them answered by the person to whom they are addressed. He might be entirely willing to have the answers of that person received as a deposition, but adverse to having the answers of other, and perhaps unknown, persons so treated. In this case defendant in terms made the answers of Gammon his answers, and asked that they be permitted to stand in lieu of his answers; but he did not state that he believed them to be true, and therefore did not make them his own, within the meaning of the statute. See Code, § 2698. They should have been stricken out on motion of the plaintiff.

2. The court permitted a deputy of the defendant to impanel the jury, although objection was duly made by plaintiff. In this there was error. Section 350 of the Code is as follows: “In all proceedings in the courts of record, where it appears from the papers that the sheriff is a party to the action, or where in any action commenced or about to be commenced an affidavit is filed with the clerk of the court, * * * stating a partiality, prejudice, consanguinity, or interest on the part of the sheriff, the clerk or court shall direct process to the coroner, whose duty it shall be to execute it in the same manner as if he were sheriff.” This provision was construed in Minott v. Vineyard, 11 Iowa, 91, to disqualify the...