Rhutasel v. Rule

• Decision Date: 27 January 1896
• Citation: 97 Iowa 20,65 N.W. 1013
• Parties: RHUTASEL v. RULE, SHERIFF.
• Court: Iowa Supreme Court

97 Iowa 20

65 N.W. 1013

RHUTASEL

v.RULE, SHERIFF.

Supreme Court of Iowa.

Jan. 27, 1896.

Appeal from district court, Franklin county; S. M. Weaver, Judge.

The plaintiff is the wife of N. J. Rhutasel, who is a judgment debtor of the Citizens' State Bank. The defendant, as sheriff, by virtue of an execution, seized some hogs as the property of N. J. Rhutasel. Plaintiff brought replevin for the hogs as the owner thereof, and by virtue of a writ the coroner took the hogs from the defendant, and delivered them to the plaintiff. Afterwards, and on the same day, the following entry was made in the court records of the cause: “This cause is now, at 5 o'clock p. m., this August 17, 1893, withdrawn by plaintiff without prejudice, at her costs, paid by plaintiff's attorneys. [[[Signed] E. A. Rhutasel, by H. C. Liggett, Atty. David Vought, Clerk.” On the 16th day of October, 1893, the defendant sheriff made a showing, by affidavit and otherwise, as to his seizure of the hogs by virtue of an execution; that the coroner by virtue of a writ of replevin took the hogs, and delivered them to the plaintiff; that on the same day the plaintiff dismissed her case, as above set out; that on the following day plaintiff shipped the hogs to Chicago, and sold them; and that the hogs were of the value of $800. With this showing was a motion that the cause “be restored to the trial calendar” for the purpose of assessing defendant's damages, and for judgment therefor. Pending this motion, the plaintiff, by the attorneys at present appearing, filed her motion to reinstate the case for trial on its merits on the ground that the dismissal “was made through misapprehension of the facts, and without any knowledge or authority from this plaintiff.” The motion to reinstate was supported by an affidavit of H. C. Liggett to the effect that what he did in dismissing the cause was without authority from his client; that it was done under a misapprehension of the facts, he believing at the time that the writ had not been served; that, after the dismissal, he proceeded at once to inform the officers not to serve the writ, and then learned that the service had been made; that he then tendered back the property, which defendant refused to take; that what he did was with the purpose to retake the property on another writ, and not to abandon the cause of action; that when informed of what he had done the plaintiff informed him that she did not want her cause dismissed, but wanted her rights determined in that action. The motion is further supported by an affidavit of the plaintiff in which she corroborates the statements of Liggett as to his authority to dismiss the action; that when informed of what had been done she informed Liggett that she did not want the action dismissed, but did want it tried on its merits. The affidavit is a further showing that she had no knowledge of a purpose to dismiss the action, and that the action is prosecuted in good faith, and is meritorious. In resistance of the motion to reinstate, affidavits are filed showing other facts, and to some extent contradicting the statements of Liggett. The district court sustained the motion to reinstate the cause for trial on the merits, on condition that plaintiff should pay the costs of that term and $20 for defendant's attorney, which plaintiff paid. The court denied the motion by defendant to assess the damages. From the ruling of the court on these motions the defendant appealed. The court, in reinstating the cause for trial, granted time to the defendant to the second day of next term to answer, at which term the cause was to be set for trial. The appeal was taken by defendant on the 2d day of March, 1894, and on the 9th day of March, 1894, the plaintiff moved for default and judgment for want of an answer, which the court...