Miller v. Swartzlender & Holman

• Decision Date: 03 May 1921
• Docket Number: 33194
• Citation: 182 N.W. 651,192 Iowa 153
• Parties: RACHEL J. MILLER, Appellant, v. SWARTZLENDER & HOLMAN, Appellee; ALBERT PICK & COMPANY, Intervener
• Court: Iowa Supreme Court

182 N.W. 651

192 Iowa 153

RACHEL J. MILLER, Appellant, v. SWARTZLENDER & HOLMAN, Appellee; ALBERT PICK & COMPANY, Intervener

No. 33194

Supreme Court of Iowa, Des Moines

May 3, 1921

REHEARING DENIED OCTOBER 1, 1921.

Appeal from Linn District Court.--F. F. DAWLEY, Judge.

DEFENDANTS operated in Cedar Rapids a restaurant known as the "College Inn," under a written lease with the plaintiff. This action was originally instituted to enforce a landlord's lien on defendant's property located on the leased premises. Intervener's claim is predicated on the allegations that the personal property in controversy was sold to the defendants, and that title to said property remained in the intervener until the performance of certain conditions on the part of the defendants. A part of the purchase price of the merchandise sold to defendants was paid, and notes secured by mortgage were executed and delivered for the balance. The defendants made no appearance nor filed answer in this action. The trial court established the lien of the intervener as superior to the landlord's lien, and judgment was entered accordingly. Plaintiff appeals.

Affirmed.

Rickel & Dennis, for appellant.

Ring & Hann, for appellee.

DE GRAFF, J. EVANS, C. J., WEAVER and PRESTON, JJ., concur.

OPINION

DE GRAFF, J.

I.

Numerous errors are assigned by appellant, but it is quite apparent that the rules of this court in the preparation of brief and argument have not been observed. Assignments of error must be specific, to present a question for decision in this court. Error is not presumed, nor can we be expected to search the record to ascertain whether there is something upon which error may be predicated. Pierce v. Wilke, 165 Iowa 386, 145 N.W. 908; Mondamin Bank v. Burke, 165 Iowa 711, 147 N.W. 148.

Assignments of error must be argued, or they will be considered abandoned. Winsor & Son v. Mutual Fire & Tor. Assn., 170 Iowa 521, 153 N.W. 97; Hollgren v. Des Moines City R Co., 174 Iowa 568, 156 N.W. 690; Thompson v Romack, 174 Iowa 155, 156 N.W. 310.

In general, it may be stated that propositions assigned as error, when not presented in the manner and form required by the rules of this court, will not be considered on appeal. Lamkin v. Lamkin, 177 Iowa 583, 159 N.W. 436.

II. Plaintiff moved to strike intervener's amendment to the petition, filed December 3, 1918. Plaintiff had filed an answer to said amendment on December 4th. The motion to strike was made on December 16th, after the cause was fully submitted to the court. It was properly overruled. An amendment to a petition cannot be attacked after the filing of answer thereto, without withdrawing the answer by leave of court first had and obtained. This was not done.

III. It is contended by appellant that the lease in question contained, in addition to the landlord's lien, a chattel mortgage lien "on all goods, furniture, fixtures, and other property of every nature, which shall have been kept, stored, or used in or about said leased premises or used in connection therewith during the entire term of this lease," to secure the payment of the rent.

In other words, it is claimed that a twofold lien existed by virtue of the lease, and that for this reason plaintiff's rights were superior to the lien of the purchase-money mortgage given by defendants to intervener subsequently to the execution of the lease. We can recognize but two liens in this case: the landlord's lien and the purchase-money mortgage lien. No other liens are in issue.

If the tenant is in the apparent ownership of personal property when the lease is executed, and the conditional sale of such property is not in writing and recorded, then and then only is the landlord considered a subsequent purchaser, within the purview of Section 2906 of the Code; and if without actual notice of the real ownership, he may treat the condition as void. This is not the instant case.

Under the terms of the lease in question, plaintiff Miller had a lien upon all of the property of the defendant located or placed upon the premises, and upon none other....