Harmon v. Hutchinson Ice Cream Co.
| Decision Date | 04 April 1933 |
| Docket Number | No. 41729.,41729. |
| Citation | 215 Iowa 1238,247 N.W. 623 |
| Parties | HARMON v. HUTCHINSON ICE CREAM CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Delaware County; R. W. Hasner, Judge.
Action in replevin, brought by plaintiff as trustee against defendant, who claimed as owner of property under a conditional sales contract. There was a trial to the court resulting in judgment for defendant against the surety on the replevin bond, and plaintiff appeals.
Appeal dismissed.
J. E. Jordan, of Waterloo, for appellant.
Donnelly, Lynch, Anderson & Lynch, of Cedar Rapids, for appellee.
At the outset of this case, we are confronted with a motion to dismiss filed by the appellee. The third ground of this motion, which we believe to be the only ground necessary to consider, is as follows:
This motion to dismiss was served upon the appellant on the 25th day of January, 1933, and the hearing in this case was at the February sitting which began on the 7th day of February, 1933. The appellee has therefore taken the requisite steps in order to present its objections to the jurisdiction of this court to entertain the appeal.
In order that we may have an exact understanding of the record, we believe it advisable to set out the portions of appellant's abstract and appellee's denial and amendment to such abstract, which have to do with the decision and judgment of the court upon which this appeal is based.
According to the record, the case was tried on the 11th day of January, 1932. The proceedings subsequent to the trial, as shown by appellant's abstract and appellee's amendment to abstract, are as follows:
“On the 23rd day of January, 1932, decision in the above matter was rendered by the Hon. R. W. Hasner, in which the Court makes five findings, findings three and four being as follows:
Decision.
Par. 3. That the certain instrument entitled a ‘Trust Deed,’ a copy of which is attached to the plaintiff's petition and the original of which was introduced in evidence, under which the plaintiff claims title to the certain Eight Hole Frigidaire Cabinet in question in this case, and claims right to possession thereof, was not executed as or intended as an instrument of security to the plaintiff or to creditors of H. Schrunk, but was intended to be in fact an assignment for benefit of cred itors by said H. Schrunk; and the Court finds, determines and decides that said instrument was and is a purported and intended assignment for benefit of creditors by H. Schrunk, that it is contrary to and in violation of the statutes of the State of Iowa relating to such assignments, and that it is void; and the Court further finds, determines and decides that the plaintiff is not entitled to the possession of said Eight Hole Frigidaire Cabinet under and by virtue of said void instruments.
Par. 4. That the defendant was entitled to possession of said Eight Hole Frigidaire Cabinet under its conditional sales contract as alleged in the defendant's answer, a copy of the conditional sales contract between the defendant and H. Schrunk being attached to the answer and the original of the same being introduced in evidence; that the defendant did under said instrument repossess said cabinet; and the defendant was at the time of the commencement of this action and now is lawfully entitled to the possession of said cabinet.
Paragraph No. 5. The Court further finds, determines and decides that the value of said Eight Hole Frigidaire Cabinet is the sum of $325 as alleged in the petition and as admitted in the answer.
It is ordered by the Court that the defendant shall, on or before January 30, 1932, file herein its election to take judgment either for the return of the property or for its value. January 23, 1932.
Plaintiff excepts.
R. W. Hasner,
Judge of the 10th Judicial District of Iowa.
That on the 28th day of January, 1932, the Hutchinson Ice Cream Company filed with the Clerk of the District Court of Delaware County its election to take a money judgment, a copy of which election is as follows:
Comes now the defendant, Hutchinson Ice Cream Company and pursuant to order of Court adjudging that the defendant was entitled to take judgment either for the return of the property or for its value, now makes and files its election to take money judgment for the sum of Three-Hundred Twenty-five ($325.00) Dollars, and the costs of this action.
Its Attorneys.”
“On March 21, 1932, judgment in favor of defendant, Hutchinson Ice Cream Company, and against United States Fidelity and Guaranty Company of Maryland, in the sum of $325.00 and costs, was rendered, entered and duly recorded.”
[1][2] It will be seen from the portions of the record above set out that the appeal is taken from “the judgment and order of the court rendered in favor of the defendant at the January term of said court, on or about the 11th day of January, 1932.” A further examination of the record will show that no judgment of any kind was entered in the month of January, 1932. On January 23, 1932, what is designated as “decision” was, according to appellant...
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