Peterson v. Fole

• Court: Iowa Supreme Court
• Writing for the Court: REED
• Citation: Peterson v. Fole, 67 Iowa 402, 25 N.W. 677 (Iowa 1885)
• Decision Date: 09 December 1885
• Parties: PETERSON v. FOLE.

67 Iowa 402

25 N.W. 677

PETERSON

v.FOLE.

Supreme Court of Iowa.

Filed December 9, 1885.

Appeal from Winnebago circuit court.

Plaintiff brought this action to recover the value of a horse on which he claims to have had a chattel mortgage, and which he alleges defendant caused to be levied on and sold on process issued in a proceeding against the mortgagor. There was a verdict and judgment for plaintiff. Defendant appeals.Pickering & Hartley, for appellant, Ole Anderson Fole.

Ransom & Olmstead, for appellee, Mikkle Peterso.

REED, J.

Plaintiff alleges in his petition that one Garnes executed and delivered to him a chattel mortgage on a horse, to indemnify him against liability on a promissory note which he had signed as security for said Garnes, and that he subsequently paid off and discharged the debt evidenced by said note. He also alleges that defendant commenced a suit against said Garnes on a money demand, in which he procured a writ of attachment to be issued, and caused the same to be levied on said horse, and that he afterwards obtained judgment on his demand, and caused said horse to be sold on execution in satisfaction thereof. Defendant in his answer admitted that he caused a writ of attachment to be issued against said Garnes, and that the officer to whom said writ was delivered to be served, levied the same on a horse belonging to Garnes, and that the same was afterwards sold on execution issued on the judgment obtained in the proceedings, and the proceeds applied on the execution, and he denied the other allegations of the petition. The circuit court instructed the jury that the answer was in effect an admission by defendant that he had caused a horse belonging to Garnes to be attached and afterwards sold on execution.

Appellant assigns the giving of this instruction as error. He claims that the only act on his part in connection wit the seizure and sale of the property, which is admitted in the answer, is the suing out of the writ of attachment; that while the seizure of the property on the attachment and its subsequent sale are admitted, these acts are alle ed to have been committed by the officer, and there is no admission that defendant procured or directed them to be done; and that, under the issue as it is made by the answer, the burden was on plaintiff to establish that defendant is responsible for the trespass, if one was committed, in the seizure and sale of the property, whereas by the instruction he was relieved of that burden. It is certainly true that the answer does not in express terms admit that defendant directed or procured the officer to seize and sell the...