Kern v. Wilson

• Decision Date: 13 May 1891
• Citation: 82 Iowa 407,48 N.W. 919
• Parties: KERN ET AL. v. WILSON.
• Court: Iowa Supreme Court

82 Iowa 407

48 N.W. 919

KERN ET AL.

v.WILSON.

Supreme Court of Iowa.

May 13, 1891.

Appeal from district court, Wright county; J. L. STEVENS, Judge.

Action to determine the right to the possession of a certain drug stock, claimed by plaintiffs under a chattel mortgage from J. C. Dwyer, and by defendant, as sheriff, under a writ of attachment in favor of Olney & McDaid against said Dwyer. Verdict and judgment for plaintiffs. Defendant appeals.Nagle & Birdsall, for appellant.

R. H. Whipple, for appellees.

GIVEN, J.

1. Defendant, in support of his plea of former adjudication, introduced in evidence the files and records of the circuit court in a case of Olney & McDaid v. J. C. Dwyer, and of J. B. Kern & Son v. H. G. Wilson, Sheriff. It appears from this record that in the former case an attachment was issued and levied upon the goods in question, and these plaintiffs intervened, and claimed the goods by virtue of their mortgage. The defendant Dwyer failing to appear, default and judgment were entered against him, with an order for special execution against the attached property. It does not appear that any proceedings whatever were had upon plaintiffs' petition of intervention, or that their claim to the property was in any wise considered or adjudicated. In the other case these plaintiffs claimed, as in this, the stock of goods, by virtue of the same chattel mortgage, and the defendant claimed the stock by virtue of the same attachment. The case went to trial, and after both parties rested, and upon motion of the defendant herein, and it appearing to the court that the notice required and contemplated by chapter 45, Laws 20th Gen. Assem., had not, prior to the commencement of this action, been served upon the defendant, the court directed the jury to return a verdict in favor of the defendant, and fixing the value of the property in controversy at $500; and thereupon, under said direction, the jury returned their verdict as follows: “We, the jury, find for the defendant that he is entitled to the possession of the property in dispute, and we find the value to be $500.” Plaintiffs moved in arrest and for new trial, which was overruled, and judgment entered upon the verdict “that the defendant have and recover of and from the plaintiffs herein the property taken upon plaintiffs' writ of replevin herein, together with the costs of suit, taxed at $43.30; said property to be released into the custody of the defendant.”

It is evident from these records that there was no decision, upon the merits, of the respective claims of these parties to the property in question in either case. It is said in argument that in the former the petition of intervention was not filed until after the default was entered, and, being too late, was not considered. The record fails to show when it was filed, but it also fails to show any adjudication upon it. In the latter case the verdict and judgment are based solely upon the want of notice. Defendant's motion was in the nature of a motion for nonsuit, and the judgment, being entered simply because of the want of notice, is one of dismissal rather than upon the merits. The basis upon which an adjudication bars a further action is that the same matter was or should have been adjudicated in the former case. The claims of these parties to this property were not, and, unless notice of ownership was waived, could not be, adjudicated in the former case between them. See, upon this subject, Arnold v. Grimes, 2 Iowa, 1; McCormick v. Grundy Co., 24 Iowa, 383; Pfiffner v. Krapfel, 28 Iowa, 27; Moomey v. Maas, 22 Iowa, 30; Standish v. Dow, 21 Iowa, 363;Delany v. Reade, 4 Iowa, 292;Boyer v. Austin, 54 Iowa, 402, 5 N. W. Rep. 585;Atkins v. Anderson, 63 Iowa, 739, 19 N. W. Rep. 323;Griffin v. Seymour, 15 Iowa, 30. As the evidence failed to show a former adjudication of any of the matters in issue in this case, there was no error in withholding that defense from the jury.

2. Appellant complains of the fourth instruction, wherein the court instructed that the description in the mortgage “is sufficiently specific to cover and embrace all property or goods sold by plaintiffs to Dwyer which are of the kind, nature, and description usually and ordinarily kept in said drug stock,” and that “plaintiffs cannot recover, under the mortgage, any furniture or fixtures, nor for any goods or property, not ordinarily and usually understood as being included in the term ‘drug stock.’ ” The invoice shows that there were many articles, such as lamps, lamp chimneys, burners, fixtures, glass, china-ware, toys,...