Haworth v. Newell

• Decision Date: 28 May 1897
• Citation: 71 N.W. 404,102 Iowa 541
• Parties: HAWORTH v. NEWELL ET AL.
• Court: Iowa Supreme Court

102 Iowa 541

71 N.W. 404

HAWORTH

v.NEWELL ET AL.

Supreme Court of Iowa.

May 28, 1897.

Appeal from district court, Polk county; C. P. Holmes, Judge.

Action at law to recover the value of a sealskin cloak taken from the plaintiff by virtue of a search warrant. The defendants appeal from an order of the district court, which sustained a motion to strike portions of an answer from a judgment on the pleadings rendered in favor of the plaintiff, and from an order overruling a motion for a new trial. Reversed.N. B. Raymond, for appellants.

T. D. Hastie, for appellee.

ROBINSON, J.

The petition states that the plaintiff is the owner of a sealskin cloak which the defendant George McNutt took from her residence in Des Moines on the 26th day of October, 1893, by virtue of a search warrant; that she acquired such ownership by purchase, and was in rightful possession of the cloak, and the defendants wrongfully took it from her, and now wrongfully detain it from her, in Polk county; and that it is of the actual value of $400. Alleged copies of the application for a search warrant, of the warrant and a return thereon, and of the record in the case made by the justice who issued the warrant and before whom a hearing as to the ownership of the property was had, are set out in the petition. The alleged copy of the application, verified by V. F. Newell, states that a sealskin cloak of the value of $100 or more, owned by Mrs. V. F. Newell, was stolen from her in Polk county; that the affiant “suspects and verily believes that Mrs. Haworth has stolen and taken the same,” and that it was then concealed in a house described, in which Mrs. Haworth was then residing with her family. A warrant to search the premises was asked. The warrant required the officers who should serve it to make immediate search of the premises described for the property, and to bring it, if found, before the court. The warrant was signed, “J. H. Maley, J. P.,” and bears a return to the effect that it was served, and a sealskin coat seized under it, which was held subject to the order of the court. The return is signed by McNutt. The copy of the justice's docket shows that Mrs. Newell, claiming the property, and Mrs. Haworth, disputing her claim, appeared before the justice; that an examination lasting several days was had; that evidence was taken, and that the court found that the coat was the property of, and that it had been stolen from, Mrs. Newell, and that the officer was ordered to deliver it to her, which was done. The petition denies that the statements contained in the application were true, and alleges that no information charging the plaintiff with any crime was ever filed; that she was never prosecuted for the alleged larceny of the cloak, nor for having wrongful possession of it; that the defendants have connived, assisted, and abetted each other in taking and detaining the cloak, and that the proceedings under which it was taken and is detained are null and void. The defendants are V. F. Newell, Mrs. Newell, McNutt, and Maley. Judgment for the possession of the cloak, or, if not returned, for its value, is demanded.

1. The Newells and McNutt joined in an answer, which contained several paragraphs, the third and fourth of which were as follows:

“Third. Further answering, these defendants allege that so much of said cloak as is now in the possession of Mrs. V. F. Newell was acquired by her under and by virtue of an order and judgment of J. H. Maley, a justice of the peace in and for Polk county, Iowa, duly rendered in proceedings instituted on or about the ______ day of October, 1893, in the name of the state of Iowa, under chapter 50 of the Code of 1873, against the said Mrs. M. E. Haworth, as defendant; that the said Haworth appeared to said action, and pleaded thereto, and agreed to a time and place for the hearing thereof; that she resisted a motion made by the prosecution for a change of venue of said action or proceeding, and testified upon the trial, and by her attorney cross-examined the witnesses produced by the prosecution; that by the judgment aforesaid Mrs. V. F. Newell was adjudged to be the lawful owner of the said cloak, and said defendant has at all times since been the owner thereof, and, said judgment never having been reversed, the said Haworth is estopped by said adjudication from questioning or disputing said defendant's title in this proceeding.

Fourth. That the proceedings aforesaid, whereby said cloak was taken from the possession of the plaintiff, were in substantial conformity with the statute in such cases provided, and, the plaintiff having, as hereinbefore alleged, submitted herself and the question of the ownership of said cloak without objection to the jurisdiction of said Maley, justice of the peace, she is now estopped from questioning or disputing such jurisdiction in this proceeding.”

The plaintiff filed a motion to strike these paragraphs from the answer, and alleged as grounds therefor that the statements contained in the paragraphs are irrelevant and immaterial; that the paragraphs were an attempt to plead an estoppel, and that the facts set forth do not constitute an estoppel; that they plead conclusions of law and matters of opinion, and do not plead any facts which are a defense to the petition. The motion was sustained, and from that ruling the defendants appeal. The paragraphs stricken out were designed to set out a complete defense to the alleged right of action of the plaintiff, and the motion was, in its nature and scope, a demurrer, and will be so treated. The petition alleges, and the first paragraph of the answer admits, that the cloak was taken by...