Linden v. Green

• Decision Date: 25 October 1890
• Citation: 46 N.W. 1108,81 Iowa 365
• Parties: LINDEN v. GREEN, SHERIFF.
• Court: Iowa Supreme Court

81 Iowa 365

46 N.W. 1108

LINDEN

v.GREEN, SHERIFF.

Supreme Court of Iowa.

Oct. 25, 1890.

Appeal from district court, O'Brien county; SCOTT M. LADD, Judge.

Action to recover possession of four cows alleged to belong to and to be wrongfully detained from plaintiff by the defendant, under a writ of attachment in his hands as sheriff against the property of Jacob Burhaus. The petition alleges service of notice of ownership, refusal to deliver the property, and sets out the notice and affidavit of service as an exhibit. Defendant answered denying that plaintiff was owner or entitled to the possession of the property, and admitting that, at the commencement of this action, he held the same by virtue of a writ of attachment as alleged. The answer shows that defendant proceeded, in the manner authorized by law, to sell said property, and states “that, prior to so doing, and to the commencement of this action, no notice of the ownership of said property by plaintiff was, in the manner and form prescribed by law, served upon defendant by plaintiff, and that the notice of ownership, alleged in plaintiff's petition to have been served upon defendant, was served by leaving the copy of the notice and affidavit with defendant, and not the original as required by law.” The case was tried to a jury, and judgment for plaintiff. Defendant appeals.Milt. H. Allen and Geo. E. Clark, for appellant.

W. D. Boies and Warren Walker, for appellee.

GIVEN, J.

1. Appellee contends that this case comes within the provisions of section 3019, of the Code, requiring appeals from orders discharging attachments to be perfected within two days, and that the appeal was not taken in time. No order was asked nor granted in this case discharging the attachment, under which the defendant held the property, nor was the validity of that attachment in question. It is not a proceeding under section 3016, as was the case of Ryan v. Heenan, 76 Iowa, 589, 41 N. W. Rep. 367, cited by counsel. It is an action to recover possession of personal property, and the appeal was taken in time.

2. To a correct understanding of the questions presented it is necessary to notice more particularly the state of the record. The notice of ownership set out was verified by Theodore Linden, and states that appellee is the owner of the property in question by purchase of one Rebecca Burhaus, but does not state for what consideration. It also shows, by copy of an affidavit indorsed thereon, that it was served on appellant “by reading the same to him in his presence and hearing, and by then and there delivering to him a true copy thereof.” On the trial, appellant objected to the notice and affidavit of service being received in evidence, upon the grounds that the notice did not recite the consideration given for the property, and that the service was by copy, which did not contain an affidavit made by the claimant. This objection was “sustained on the ground that it was not shown that the sheriff received the notice.” Testimony was then introduced tending to show that the original notice was handed to appellant, and by him returned to the party making service. There is conflict in the testimony as to whether the original notice was handed to appellant or not. Following this testimony the offer was renewed, and the same objection is made, and overruled. At the close of the testimony for appellee, appellant moved for a verdict upon the grounds among others that there was no evidence that a notice of ownership, as required by chapter 45, Laws 20th Gen. Assem., had been served upon him in manner and form as required. This motion was also overruled. The court directed the jury to determine whether the notice was properly served upon the sheriff “as required by law.” That, if the notice was received by the sheriff, they should proceed to consider the other matters in the case, but if not receivedby him they should find for the defendant. That if the notice was handed to the sheriff and he took the same that would be sufficient receiving of it, and that the return thereof, and receipt of the copy, would simply amount to a waiver of his right to the original. There was no instruction given with respect to the sufficiency of the notice. Appellant assigns these rulings and the giving of said instruction as errors, on the grounds that the notice was not verified by the claimant, does not state the consideration for which claimant acquired the property, and because the service thereof was by copy. Appellee contends that as these grounds of objection appear upon the face of the petition, and appellant did not object thereto, by demurrer or motion in arrest of judgment, he must be held to have waived said objections.

3. Chapter 45, Acts 20th Gen. Assem., requires that notices of ownership of property held by officers under attachment, shall be in writing, under oath, and shall state that the property belongs to the claimant, the nature of his interest, the facts showing how he acquired such interest, and for what consideration. That appellee could not maintain this action without first giving appellant such notice is not questioned, nor is it questioned but that the petition showed upon its face by whom it was verified, that the consideration was not stated in the notice given, and that the service of that notice was by copy. Section 2650 of the Code is as follows: “When any of the matters enumerated as grounds of demurrer do not appear on the face of the petition, the objection may be taken by answer. If no such objection is taken, it shall be deemed waived. If the facts stated by the petition do not entitle the plaintiff to any relief whatever, advantage may be taken of it by motion in arrest of judgment before judgment is entered.” Without now determining whether the notice or service was sufficient, we inquire whether appellant waived these objections by failing to demur or move in arrest of judgment. The answer denies the service of notice, “in the manner and form prescribed by law,” but the authority to object by answer is limited to cases where the grounds of objectiondo not appear upon the petition. The inference is plain that it cannot be by answer when the grounds do so appear. The provision that if no such objection is taken, it shall be deemed waived, surely means that if it be not taken by demurrer, when that is the proper mode, or by answer, when that is proper, it is waived. McCormick v. Blossom, 40 Iowa, 256;Roop v. Seaton, 4 G. Greene, 252; Ryan v. Mullinix, 45 Iowa, 632. By the denial in the answer these objections were not properly raised. A motion for new trial is quite different from, and...