Joyce v. Miller Bros.
| Decision Date | 19 October 1882 |
| Citation | 13 N.W. 664,59 Iowa 761 |
| Parties | JOYCE v. MILLER BROS |
| Court | Iowa Supreme Court |
Appeal from Palo Alto Circuit Court.
THE plaintiff sued out an attachment, and caused certain property to be attached which the court released or discharged from the attachment, and the plaintiff appeals.
AFFIRMED.
P. O Cassidy and T. W. Harrison, for appellant
C. E Cohoon and Geo. E. Clark, for appellee.
I. The plaintiff caused to be attached two horses as the property of the defendants. The defendant, John I. Miller, filed a motion under Code § 3018, to discharge the attached property because he was the head of a family, and the horses attached belonged to him, and therewith he habitually earned his living, and they were therefore exempt from execution. The plaintiff filed an answer to the motion, setting up that the claimant did not claim the property as exempt from execution at the time the levy was made, but on the contrary, voluntarily surrendered it to the sheriff.
On motion the answer was stricken from the files on the ground it was unknown to the law in a case of this kind. Of this ruling the plaintiff complains. We think it correct, because no pleading is required or allowed controverting the motion. If, however, there was error in striking the answer from the files, it was not prejudicial, because evidence was introduced tending to show the matter alleged therein, and no complaint is made that any evidence in relation to the matter pleaded in the answer was excluded.
Counsel, seem to suppose because the matter pleaded by the plaintiff was in the nature of an estoppel, therefore it was essential that the same should be pleaded. But this rule cannot apply in a case where pleadings are not allowed or required.
II. Evidence was introduced by both parties upon the questions to whom did the property belong, was it exempt from execution, and did the defendant so claim when the levy was made? The burden as to these questions, was on the defendant, and, in relation thereto, we desire to say, we have each, severally and separately, read the evidence, and have separately reached the same conclusion, that we cannot interfere with the findings of the court, which stands as the verdict of a jury. The evidence is seriously conflicting, but we think the preponderance is with the plaintiff. It may be it is not so clear as to whether there was a claim made at the time of...
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