Lowrey v. Schroeder

• Decision Date: 21 December 1920
• Docket Number: No. 33480.,33480.
• Citation: 180 N.W. 145,190 Iowa 459
• Parties: LOWREY v. SCHROEDER.
• Court: Iowa Supreme Court

190 Iowa 459

180 N.W. 145

LOWREY

v.SCHROEDER.

No. 33480.

Supreme Court of Iowa.

Dec. 21, 1920.

Appeal from District Court, Delaware County; H. B. Boies, Judge.

Action in replevin. Verdict for defendant and judgment for the value of the property in controversy. Plaintiff appeals. Affirmed.Trewin, Simmons & Trewin, of Cedar Rapids, Fred B. Blair and E. B. Stiles, both of Manchester, and Grimm, Wheeler & Elliott, of Cedar Rapids, for appellant.

Hugh Clemons, of Manchester, and Cook & Cook, of Independence, for appellee.

STEVENS, J.

On December 2, 1911, C. Chesmore, since deceased, commenced this action for the possession of a $500 note purporting to have been signed by him, alleging that his signature thereto was a forgery. Bond in the usual form was given. On or about January 28, 1912, the plaintiff died, and later Anna Chesmore Lowrey, his wife, who had remarried, was appointed administratrix and substituted as plaintiff.

On March 21, 1913, the defendant filed answer admitting the formal allegations of plaintiff's petition and averring that the note in controversy was genuine, and of the value of $500, and that she was the absolute owner thereof at the time of the commencement of suit and at the time of filing the answer. The defendant, however, prayed judgment for the value of the note, together with attorney fees and damages against plaintiff as administratrix and the sureties on the replevin bond. On July 10, 1912, the defendant filed a claim against the estate of C. Chesmore based upon said promissory note and asking the allowance thereof. The trial of the case appears to have consumed several days, and near its close counsel for plaintiff asked leave to file an amendment to the petition to conform the pleading to the evidence, alleging that the defendant, before filing answer in the replevin suit, waived any claim or right to judgment against plaintiff and the sureties on the replevin bond for the value of the property by filing a claim in probate based upon said note and asserting ownership thereof. The court refused to permit the offered amendment to be filed. At the close of all the evidence, counsel for plaintiff requested the court to instruct the jury that the filing of the claim in probate constituted an irrevocable election upon her part to claim possession and ownership of the note, and that in the event the suit should be determined in her favor she be deemed to have waived her right to judgment for the value of the property. The offered instruction was refused by the court.

The right of the defendant in a replevin action under section 4178 of the Code to elect to have an execution for the return of the specific property, or for judgment for the value thereof, has been frequently sustained by this court. Rust v. Olson, 113 Iowa, 571, 85 N. W. 799;Sheffield v. Hanna, 136 Iowa, 579, 114 N. W. 24;Blaul & Sons v. Wandel, 137 Iowa, 301, 114 N. W. 899;Richards v. Hellen, 153 Iowa, 66, 133 N. W. 396;Newton v. Round, 109 Iowa, 286, 80 N. W. 391. It is also the settled rule in this jurisdiction that the defendant may, by an appropriate pleading, in the replevin action, treat the taking of the property as a conversion and recover the value thereof with interest, but having done so is not entitled to damages. Becker v. Staab, 114 Iowa, 319, 86 N. W. 305;Powers v. Benson, 120 Iowa, 428, 94 N. W. 929. The election to have an execution for the delivery of the specific property, or a judgment against the plaintiff and the sureties on the bond for the value of said property, need not be exercised until the verdict of the jury fixing the value...