Ranslow v. U.S. Fidelity & Guaranty Co., 48037

• Decision Date: 06 May 1952
• Docket Number: No. 48037,48037
• Citation: 53 N.W.2d 247,243 Iowa 731
• Parties: RANSLOW v. U. S. FIDELITY & GUARANTY CO. et al.
• Court: Iowa Supreme Court

Page 247

53 N.W.2d 247

243 Iowa 731

RANSLOW v. U. S. FIDELITY & GUARANTY CO. et al.

No. 48037.

Supreme Court of Iowa.

May 6, 1952.

F. H. Becker and R. N. Russo, of Dubuque, for appellant.

E. J. Kean and Czizek & Czizek, all of Dubuque, for appellees.

OLIVER, Justice.

This case grows out of a prior suit in the same court by plaintiff against Lloyd Lee Frank et al. A writ of attachment had issued under which defendant deputy sheriff had attached Frank's automobile. Defendants Frank et al. moved to dismiss the petition. January 5, 1949, the court sustained the motion and ordered plaintiff to plead over or elect to stand on the ruling by January 25. January 10, the deputy sheriff released the attachment and returned the automobile to Frank. January 25, 1949, plaintiff filed in said action a substituted and amended petition. Trial of that action in 1950 resulted in judgment for plaintiff against Frank for $4,517.06.

Thereafter plaintiff brought the instant case, praying judgment, in Count Four of the petition, against the sheriff and deputy for $4,517.06, plus interest and accrued costs, on account of their alleged wrongful and unlawful release to Frank of the attached automobile. Defendants' motion to dismiss said Count Four asserted the petition, in several specified particulars. failed to state a claim upon which any relief should be granted. See Rule 104(b), Rules of Civil Procedure. The trial court sustained this motion August 7, 1951. Plaintiff did not plead further. September 1, 1951, he filed notice of appeal to this court.

Section 639.64 Code of Iowa 1950, I.C.A., provides in part:

'If the judgment is rendered in the action for the defendant, or, if the action is dismissed by the court, * * * the attachment shall, subject to the right of appeal, automatically be discharged and the property attached, or its proceeds, shall be returned to the defendant.'

Rule 86, Rules of Civil Procedure, provides a party required or permitted to plead further by an order or ruling, shall do so within seven days after the mailing or delivery of notice thereof, unless otherwise provided by order or ruling; 'and if such party fails to do so within such time, he thereby elects to stand on the record theretofore made. On such election, the ruling shall be deemed a final adjudication in the trial court without further judgment or order; * * *.'

The order of January 5, 1949, in the previous suit, recited: 'Defendants' Motion to Dismiss Plaintiff's petition is sustained, and plaintiff shall on or before January 25, 1949, either plead over or file an election to stand on the ruling of the court.'

In the order of August 7, 1951, here upon appeal, which sustained the motion to dismiss Count Four, the court reasoned the release to Frank of the automobile attached in the prior case, was proper because the attachment had been automatically discharged, under Code section 639.64, I.C.A., by the order of January 5, 1949, sustaining the motion to dismiss that petition. The order appealed from states: 'When the plaintiff filed his substituted and amended petition * * * within the time allowed by the court to plead over, if he wished to retain an attachment lien on the property h...