Prichard v. Hopkins

• Decision Date: 23 October 1879
• Citation: 2 N.W. 1028,52 Iowa 120
• Parties: PRICHARD v. HOPKINS
• Court: Iowa Supreme Court

2 N.W. 1028

52 Iowa 120

PRICHARD v. HOPKINS

Supreme Court of Iowa, Des Moines

October 23, 1879

Appeal from Plymouth Circuit Court.

REPLEVIN for a large quantity of wheat and oats. The plaintiff claims the absolute ownership of the grain, and alleges that the same was raised and grown by him. The petition shows the alleged cause of detention is that defendant as sheriff levied upon the grain under an execution issued on a judgment against Godfried Houser, and in favor of J. I. Case & Co.

The answer as a defense sets up that defendant, as sheriff of Plymouth county, levied an execution as stated in the petition upon the grain, which it is alleged is subject to seizure upon the execution to satisfy the judgment. The answer admits that the plaintiff raised the grain, but avers that the land was cultivated by plaintiff under a parol contract or lease entered into between plaintiff and Houser for the purpose of defrauding, hindering and delaying the creditors of Houser, and especially the plaintiff in the execution. The answer sets out the circumstances under which the lease was entered into, and other matters. The plaintiff's reply denied the allegations of the answer inconsistent with averments of the petition.

There was a verdict and judgment for defendant; plaintiff appeals.

REVERSED.

G. W Argo and E. W. Weeks, for appellant.

Struble Bros., for appellee.

OPINION

BECK, CH. J.

I. Upon the motion of defendants, based upon a showing as to the value of the property, the plaintiff was required by proper order to give additional security in the action by increasing the penalty of the replevin bond. This order is made the first ground of objection to the judgment. The decision of the court in no manner affected the rights of the parties in the trial of the case. The verdict and judgment could not have been different had the motion been overruled. It cannot be said that there is any error in the judgment by reason of the court's ruling upon the motion. Notwithstanding the error in the ruling, if it be erroneous, the judgment cannot be set aside upon this ground.

It may be also truly said that the defendant, by complying with the order, admitted its correctness, thereby waiving the right to object afterward on the ground of error.

II. It is next insisted that the court erred in rejecting evidence which plaintiff proposed to introduce tending to show the following facts, stated in the language of the argument of plaintiff's counsel. "First, that the defendant never made a proper or legal levy on the property, because he never reduced the same to his possession and never exercised any custody or control over the same. Second, that if the court should hold that the defendant made such a levy as the law contemplates shall be made, by the subsequent acts and conduct of the officer in not placing some person in possession thereof, or exercising some authority or control over the property after the levy, whatever rights he had acquired by virtue of that levy had been lost, by reason of the abandonment thereof; having thus lost whatever control and possession he had obtained, he could not again repossess himself thereof, the property having changed its nature and lost its identity by being harvested, threshed and its value greatly increased by the labor and money expended thereon by the plaintiff."

There is no error in this ruling, for the reason that the facts proposed were not in issue. The levy and possession of defendant is alleged in the petition, averred in defendant's answer and nowhere denied in other pleadings. Indeed, the case of plaintiff is based upon the facts of levy of the execution and possession of the property by defendant thereunder, and it was presented to the jury upon that theory. There was,...