Redding v. Page

• Decision Date: 03 December 1879
• Citation: 52 Iowa 406,3 N.W. 427
• Parties: JAMES REDDING, APPELLEE, v. J. H. PAGE AND OTHERS, APPELLANTS.
• Court: Iowa Supreme Court

52 Iowa 406

3 N.W. 427

JAMES REDDING, APPELLEE,

v.J. H. PAGE AND OTHERS, APPELLANTS.

Supreme Court of Iowa.

Filed December 3, 1879.

Appeal from Hardin district court.

Replevin for wheat and other grain. The cause was tried to the court without a jury, and judgment rendered for plaintiff. Defendants appeal. The facts of the case appear in the opinion.King & Henley, for appellant.

J. H. Scales, for appellee.

BECK, C. J.

1. The petition alleges that plaintiff was owner of the property, and that he acquired title thereto by purchase from one Markham. The defendants set up in the answer that they hold the property under an order appointing one of them receiver in a case of foreclosure, wherein Markham was defendant. The property was taken and is held by the receiver under this order. The answer claims that the action cannot be maintained because the property is in the custody of the court wherein the foreclosure suit is pending. Certain errors are assigned and presented in argument assailing the judgment of the circuit court on the ground that it is not sustained by the testimony. The assignment specifically points out as error that no leave to prosecute the suit was shown; that the property was held by a receiver of another court; that no demand was shown, and that the amount of the judgment is excessive. All these objections are aimed at the judgment, and are based upon the ground that it is not sufficiently supported by the evidence. We cannot consider the objections, for the reason that the judgment was in no manner excepted to in the court below. No exception appears to have been taken in any form to the judgment. It is a familiar rule that we cannot consider objections unless based upon exceptions taken in the court below. We will not review a judgment complained of as not being supported by the evidence unless it was excepted to in some form. This rule is so familiar that the citation of cases is not needed in its support.

2. The court refused to admit evidence to show that plaintiff made no demand for the property before the action was commenced. But a demand was not necessary to give plaintiff a right of action, as both parties claimed title to the property. The plaintiff claimed title under a purchase from Markham, and defendant claimed title as the receiver appointed in the foreclosure proceeding. A demand was not necessary to confer upon plaintiff the right of possession, nor to terminate such right held by defendant. The law...