Murray v. Thiessen

• Decision Date: 15 October 1901
• Citation: 87 N.W. 672,114 Iowa 657
• Parties: ADAM MURRAY, Appellant, v. P. H. THIESSEN, Sheriff
• Court: Iowa Supreme Court

87 N.W. 672

114 Iowa 657

ADAM MURRAY, Appellant, v. P. H. THIESSEN, Sheriff

Supreme Court of Iowa, Des Moines

October 15, 1901

Appeal from Benton District Court.--HON G. W. BURNHAM, Judge.

ACTION against defendant as sheriff, to recover possession of certain cattle alleged to belong to plaintiff, but seized by defendant under writ of execution against one William Murray. Defendant claims that notice of plaintiff's ownership was not given him as required by law. The notice offered in evidence by plaintiff having been excluded on defendant's objection, the court, on motion, directed the jury to return a verdict for defendant. Plaintiff appeals.

Reversed.

C. W E. Snyder and Gilchrist, Whipple & Montgomery for appellant.

J. J Mosnat and Tom H. Milner for appellee.

OPINION

MCCLAIN, J.

Appellant offered in the lower court to show that defendant actually took an indemnifying bond from the execution plaintiff, and insists now that he should have been allowed to prove the taking of such bond, and that such bond would have rendered the notice of ownership, whether sufficient or not, immaterial, and relies on Whitney v. Gammon 103 Iowa 363, 72 N.W. 551; Waterhouse v. Black, 87 Iowa 317, 54 N.W. 342. The difficulty is that the indemnifying bond was not admissible under the issues. In the petition it was alleged that notice of ownership had been given. When plaintiff sought to prove this allegation by the introduction of the notice, he was met with objections to the sufficiency of the notice, which the court sustained. The offer in evidence of the bond was not material or relevant in proving the giving of sufficient notice. If plaintiff had alleged waiver of notice by the act of taking a bond, proof of the bond might have been material. But it is well settled that a waiver must be pleaded. Code, section 3559, and notes on page 1335, col., 2. It is necessary, therefore, to pass upon the question whether the court erred in sustaining the objection to the notice when offered in evidence. The material part of it was as follows: "You are hereby notified that I am the sole and absolute owner of the certain thirty-three head of steers and cows levied on by you under and by virtue of an alleged execution from the Benton county, Ia., district court, in favor of H. B. Hidy and against Wm. Murray, taken as the property of one William Murray, notice of which said levy you served on the said Wm. Murray on the 25th day of October, 1899, at Belle Plaine, Iowa and that the said Wm. Murray has no interest whatever in said cattle, and never has had; that I purchased the said cattle in South Dakota from different parties, whose names I am not now able to give, but who reside between Pierre and Blunt, South Dakota; that I paid for said cattle levied on by you the sum of fifteen hundred dollars. I hereby demand of you the immediate release and return of the said cattle to my possession at the place where you found same." The objections to the notice in this form were that it did not describe the property, did not show from whom plaintiff acquired the property, and showed that the animals referred to were purchased from...