P. Schoenhofen Brewing Co. v. Armstrong

• Decision Date: 20 January 1894
• Citation: 57 N.W. 436,89 Iowa 673
• Parties: P. SCHOENHOFEN BREWING COMPANY, Appellant, v. W. S. ARMSTRONG, Sheriff, Appellee
• Court: Iowa Supreme Court

57 N.W. 436

89 Iowa 673

P. SCHOENHOFEN BREWING COMPANY, Appellant, v. W. S. ARMSTRONG, Sheriff, Appellee

Supreme Court of Iowa, Des Moines

January 20, 1894

Appeal from Audubon District Court.--HON. 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 the 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 the defendant for the value of the liquors. The plaintiff appeals.

Affirmed.

H. U Funk, John M. Griggs and Theo. F. Myers, for appellant.

Nash, Phelps & Green, H. M. Hanna and R. C. Carpenter, County Attorney, for appellee.

OPINION

GRANGER, C. J.

I.

In the original petition, as filed, the value of the liquors was placed at four hundred and eight dollars and thirty cents. The petition was filed July 7, 1890. In the answer, filed December 17, 1890, the value, as alleged, is denied. On the seventh 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, the plaintiff, without leave of court, filed an amendment placing the value of the liquors at one hundred and one dollars, 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 the appellant. Conceding the liberality of the rule as to amendments, they are always to be allowed in furtherance of justice. Code, section 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 four hundred and eight dollars and thirty cents. When the 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 one hundred and one dollars, "and...