Hamilton v. Hartinger

• Decision Date: 17 October 1895
• Citation: 96 Iowa 7,64 N.W. 592
• Parties: HAMILTON ET AL. v. HARTINGER.
• Court: Iowa Supreme Court

96 Iowa 7

64 N.W. 592

HAMILTON ET AL.

v.HARTINGER.

Supreme Court of Iowa.

Oct. 17, 1895.

Appeal from district court, Hardin county; S. M. Weaver, Judge.

Action to recover $437.20, with interest, on seven promissory notes executed by the defendant to the plaintiffs. The action was aided by attachment. Defendant answered, admitting the execution of the notes, and setting up a counterclaim on the attachment bond, alleging that the attachment was wrongfully and maliciously sued out and levied, to his damage $200. The jury found specially that the attachment was wrongfully, but not maliciously, sued out, and $200 was allowed to the defendant on his counterclaim. Plaintiffs appeal. Affirmed.A. M. Bryson and Chas. L. Hays, for appellants.

C. E. Albrook, for appellee.

GIVEN, C. J.

1. Plaintiffs contend that there was no valid levy of the attachment upon any personal property, because no written notice of such levy was given to the defendant, and because the sheriff did not take any of said property into his custody, and therefore the plaintiffs are not liable to the defendant in damages for what was done to said personal property. The sheriff's return on the attachment shows that on the 3d day of February, 1894, the writ came into his hands, and that on the same day he attached certain real estate described, “by giving the defendant personal notice of said levy, as shown by Exhibit A, hereto attached: ‘Exhibit A. To James Hartinger, Defendant: You are hereby notified that on the 3d day of February, 1894, a writ of attachment was issued from the office of the clerk of the district court of Hardin county, Iowa, in the above-entitled cause; and by virtue thereof I did on the 3d day of February, 1894, levy upon the following described real estate, to wit: The west 1/2 of southeast 1/4 of section 21-88-21, in Hardin county, state of Iowa, as your property, by making entry thereof on page 167 of the Incumbrance Book of said county.’ Jno. T. Boylan, Sheriff.” The return further shows that on the 5th day of February, 1894, “I further served the same, by attaching, as the property of the defendant, the personal property as shown by Exhibit B, hereto attached, and made a part hereof: ‘Exhibit B. Sheriff's inventory on attachment: One Globe windmill; 1 one-hole cornsheller; 1 Shoudy windmill attachment; 4 barrels and casks of machine oil, part full; 1 Charles City seeder; 4 walking plows; 3 Walton; 1 Weir; 3 Peoria seeders; 1 Caskadden feedmill; 1 pair sleds; 1 Norwegian disk harrow; 1 Walton 72-tooth harrow; 1 Evans 72-tooth harrow; 2 pump heads and box pump repairs; 1 box sections and rivets; 4 cans machine oil; 2 dozen boxes of axle grease; 1 Alpine office safe; 1 office table; 1 letter box; 1 office stove; 3 sleighs (said to be commission); 1 straw stacker (Newark Machine Co.).’ ” On the 4th day of May, 1894, the sheriff made the following amendment to his return: “Comes now Jno. T. Boylan, sheriff of said county, and makes this amended return of his doings under the writ of attachment in this cause, under the direction of the court; and do further certify and return that on the 5th day of February, 1894, I entered upon the premises of the defendant, James Hartinger, at Alden, Iowa, being his place of business in the sale of farm machinery, agricultural implements, etc., and informed him that I had a writ of attachment against him in favor of the plaintiff, and that by virtue thereof I levied and do levy on his ‘stock of implements and machinery of every nature and description, pumps, and everything of every kind, stock of all kinds,’ all of which property was then and there present. I gave him personal notice, by word of mouth, of said levy, and informed him that I would place the same in the hands of his son, Charles Hartinger, a man of lawful age, as my bailee. That I did not remove any of the said stock from the building in which the said James Hartinger was doing business, but placed the same in the possession of said Charles Hartinger as bailee, and so informed said defendant, to which he assented; and I now hold the levy on said personal property through my said bailee, who receipted to me for all of said goods, which receipt I still hold. That I found said James Hartinger in the possession of said personal property so levied upon, and not only gave him notice that I would make said levy, but by word of mouth, in his presence and hearing, that I had made said levy. May 4th, 1894. Jno. T. Boylan, Sheriff.” In addition to what appears in his return, the sheriff testifies that after having informed the defendant of the attachment, and notified him that he took possession of the property under the attachment, he went around and made a memorandum of the property from which Exhibit B was afterwards made, and then and there turned the property over to Charles Hartinger, and took his receipt therefor, and directed Charles that “he must hold that property, and every particle of it, until order of the court.” The defendant then delivered to Charles a key to the building, and Charles remained in control of the goods in the building where they were up to the time of the trial. The defendant kept another key which he had to the building, and, with the permission of Charles, he sometimes used the office, the safe, table, and stove therein. It appears that the articles enumerated in Exhibit B did not include all the property which the defendant had in his establishment. There were some $400 worth of twine, and $100 worth of mower guards, and other articles. After the levy the defendant sold two harrows that were outside of the building, on the platform,...