Porter v. Knight

Decision Date24 April 1884
Citation19 N.W. 282,63 Iowa 365
CourtIowa Supreme Court

Appeal from Polk Circuit Court.

ACTION on a lease of a farm; and the plaintiffs seek to recover on the grounds that the defendant failed to cultivate the farm in a proper manner, and failed to deliver to the plaintiffs the share of the crops raised, as provided in the lease. The plaintiffs caused an attachment to issue, and certain property belonging to the defendant was levied on and taken possession of by the sheriff. The material allegations in the petition were denied in the answer, and a counter-claim was pleaded by the defendant, and he sought to recover damages caused by, as he claimed, the wrongful suing out of the attachment. There was a trial by jury, who found for the defendant, and assessed his damages at $ 250.27, and judgment was rendered therefor. Both parties appeal. The plaintiffs however, must, under the statute, be regarded as appellants.

AFFIRMED on defendant's appeal. REVERSED on plaintiffs' appeal.

Finkbine & McClelland, for appellants.

Baylies & Baylies, for appellee.




The court in the charge to the jury made a lengthy statement of the issues, but at the conclusion thereof stated: "For a more exact and complete statement of the allegations of the parties and the issues in the case, see the pleadings themselves." In a paragraph of the charge the court said: "When you find that a fact is alleged by one of the parties and expressly admitted by the other, you may assume the fact thus admitted to be true, and no further evidence is necessary on that point. As to all the matters alleged in the petition and denied by the answer, the burden of proof rests upon the plaintiffs to establish the truth of the same, * * * and, in like manner, all the allegations made by defendant in his counter-claim, * * and denied by the reply, must be established by the defendant."

It is somewhat difficult to say that the issues were not fully stated to the jury, and we are unable to understand why the jury were referred to the pleadings for the issues. It has been held that this constitutes reversible error. Fitzgerald v. McCarty, 55 Iowa 702, 8 N.W. 646, and cases cited.

If it be conceded that the issues were fully stated by the court, how can it be determined, as the jury were invited or directed to examine the pleadings for the purpose of ascertaining what the issues were, that they did not do so, and conclude that the issues had not been accurately stated by the court. It is improper to direct the jury to the pleadings for the purpose of ascertaining what is or is not admitted or denied. It is the province of the court to determine the issues, and the duty of the jury in this respect to follow the direction of the court. Because of the full statement of the issues made by the court, some of us have doubts whether, in fact, there was prejudicial error in referring the jury to the pleadings, when all the instructions bearing on this question are considered. Therefore, no determination of the question is made; but we have deemed it proper to say this much, because the case must be reversed on other grounds, and a new trial had.

II. We regard the instructions, except as above and hereafter indicated, as being substantially correct. The property attached, as we understand, consisted of "straw, stalk-pasture, oats, corn and hay." This property was sold by the sheriff under a stipulation, which reserved to the parties "all rights they now have, not waived by this instrument."

There were also attached two colts, which were subject to a prior mortgage, under which the colts were taken from the sheriff and sold. The proceeds, after satisfying the mortgage and costs of sale, were paid to the sheriff, and the same is held by him under the attachment.

There was also attached a yearling colt and a heifer, which, as we understand, were still in the sheriff's hands at the time of the trial. The court instructed the jury as follows:

"11. If you find that the attachment was not wrongfully sued out, you need not inquire further as to defendant's counter-claim and the damages claimed thereunder.

"If the attachment was wrongfully sued out by said L. M. Small, then defendant is entitled, at least, to such actual damages as he has proved in the case. The actual damages would be the actual loss sustained by defendant by reason of the levy of the attachment, as shown by the testimony.

"If said property levied on was sold or disposed of by the sheriff, defendant's damages would be the fair cash value of the same when wrongfully levied on and taken, or the fair cash value of defendant's interest in said property, with six per cent interest from the time of the levy.

"In awarding actual damages, your aim should be to compensate the party injured for actual loss directly resulting from the wrongful acts complained of.

"11 1/2. If you find that the attachment was wrongfully sued out, and that defendant is entitled to damages, the measure of his damages upon the property levied on and still in the hands of the sheriff is the loss sustained by defendant by reason of being deprived of the use of said property since the levy, and any depreciation in value of the same; and as to the property seized and sold by the consent of the parties, while plaintiffs should be charged with the cash value at the time of the seizure, they are entitled as a credit to the net cash in the hands of the sheriff, after paying costs and expenses resulting from the sale of said property."

As applied to the facts in this case, these instructions or paragraphs of the charge, we think, are erroneous. First, as to the mortgaged property. It has been held that the mortgagor of personal property has no interest therein which can be levied on and sold under execution. Gordon et al. v. Hardin, 33 Iowa 550. Whether this fact has any bearing on the question as to what damages the defendant was entitled to recover, was not presented to the court below; and we shall determine the case as it was tried there, and merely mention the fact above stated, so that what we may say will not be misunderstood. The two colts, it will be...

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