P. Schoenhofen Brewing Co. v. Armstrong

• Decision Date: 20 January 1894
• Citation: 57 N.W. 436,89 Iowa 673
• Parties: P. SCHOENHOFEN BREWING CO. v. ARMSTRONG, SHERIFF.
• Court: Iowa Supreme Court

89 Iowa 673

57 N.W. 436

P. SCHOENHOFEN BREWING CO.

v.ARMSTRONG, SHERIFF.

Supreme Court of Iowa.

Jan. 20, 1894.

Appeal from district court, Audubon county; N. W. Macy, Judge.

The defendant is the sheriff of Audubon county, in this state, and as such, by virtue of a search warrant issued by a justice of the peace, he seized and took a quantity of intoxicating liquors from the custody of John Mullen and William Burns. This is an action for the recovery of the specific personal property, and, by virtue of a writ herein issued, the liquors were taken from the custody of the defendant under allegations by the plaintiff that it is a resident corporation of the state of Illinois; that it shipped said liquors into this state from the state of Illinois in the original packages, to be sold in packages in this state by its agents, Mullen and Burns; and that it is the owner thereof, and entitled to immediate possession. The answer, by way of defense, after certain denials, states the facts as to the custody of the liquors by defendant by virtue of the search warrant, and their being taken therefrom under process in this suit. The case was tried to a jury, resulting in a verdict for the defendant, and a judgment for defendant for the value of the liquors. The plaintiff appealed.H. U. Funk, John M. Griggs, and Theo. F. Myers, for appellant.

Nash, Phelps & Green, H. W. Hanna, and R. C. Carpenter, Co. Atty., for appellee.

GRANGER, C. J.

1. In the original petition, as filed, the value of the liquors was placed at $408.30. The petition was filed July 7, 1890. In the answer, filed December 17, 1890, the value, as alleged, is denied. On the 7th of March, 1891, the answer was amended, admitting the value as alleged. On the same day, after the jury was impaneled to try the issues, plaintiff, without leave of court, filed an amendment placing the value of the liquors at $101, which amendment was, on motion of the defendant, stricken from the files, and the action of the court in so doing is assigned as error. Some four grounds were stated in the motion for the court's action. The first is: “That it was filed without the leave of the court first obtained.” If the court would have been justified in refusing leave, if asked before filing, it was justified in striking the amendment because filed without leave, and that method of considering the question will certainly be fair to appellant. Conceding the liberality of the rule as to amendments, they are always to be allowed in furtherance of justice. Code, § 2689. The ruling of the court must have been made in view of the facts that, when the amount was fixed in the petition originally, the plaintiff, if successful in the suit, might be required to accept a judgment for the value of the liquors, and it then very precisely stated the value as $408.30. When plaintiff filed the amendment, the situation had so changed that, if the defendant should be successful, it might be required to pay the value of the liquors, and it then sought to change the averment as to the value, and fix it at $101, “and...