Sigler v. Murphy

• Decision Date: 17 December 1898
• Citation: Sigler v. Murphy, 107 Iowa 128, 77 N.W. 577 (Iowa 1898)
• Parties: SIGLER v. MURPHY.
• Court: Iowa Supreme Court

107 Iowa 128

77 N.W. 577

SIGLER

v.MURPHY.

Supreme Court of Iowa.

Dec. 17, 1898.

Appeal from district court, Pottawattamie county; W. R. Greene, Judge.

The plaintiff planted certain land, bordering on the Missouri river, variously estimated at from 30 to 50 acres, to corn, in the season of 1894. For this purpose he went into possession April 24th of that year, cleared the land of brush, willow, and cottonwood, and broke it. Prior to October 2d he had put all but a few acres of the corn in shock, and on that day the defendant sued out a landlord's writ of attachment, and caused it to be levied thereon. On the 12th day of October the defendant was enjoined, in an action brought by the plaintiff, from disposing of the property under the writ as perishable. In pursuance of a stipulation made the 12th day of March, 1895, Lindt husked the corn, and placed one-third of it in a crib designated by the defendant, there to abide the judgment and order of the court in the attachment suit, and the plaintiff took the remaining corn and fodder. The defendant instituted a suit in equity October 8, 1894, to enjoin the plaintiff from going upon this land, or interfering with it in any way, and a decree was entered therein November 6, 1895, by which title thereto was settled in the defendant. In the attachment suit, judgment was entered in favor of the plaintiff herein, and the defendant failed to return the one-third of the corn held to abide its result. This action is brought to recover damages occasioned by the alleged wrongful and malicious suing out of the writ of attachment, and for injuries done to the property by defendant's stock after the levy and prior to the agreement referred to. By direction of the court, the jury returned a verdict for the defendant. From the judgment entered thereon plaintiff appeals. Reversed.Sweet & Mynster, for appellant.

W. H. Ware, for appellee.

LADD, J.

The notes of the official stenographer, who took down all the evidence in shorthand, were duly certified by the trial judge, and filed in apt time. No certificate of the reporter was attached. That this constituted a sufficient bill of exceptions appears from Hurlburt v. Fyock, 73 Iowa, 479, 35 N. W. 482;Ross v. Loomis, 64 Iowa, 433, 20 N. W. 749; and Fleming v. Stearns, 79 Iowa, 258, 44 N. W. 376. But see Code, § 3675.

2. The petition in the suit brought by Mrs. Murphy to enjoin Sigler from going on or interfering with this land was excluded from the evidence on the objection of the defendant, though the decree entered therein was received. It is not set out in the abstract, but it is there merely stated, that it settled the title to the land in the defendant. The action was begun October 8, 1894, and the decree is presumed to relate back to that time, but not further. Status once established will be presumed to continue until shown to have changed, but there is no presumption of its existence prior to the time proven. Lawson, Pres. Ev. 581. This decree was the only evidence of title or ownership in the defendant introduced. As to who was the owner prior to that time the record is silent, except in so far as it shows that from the 24th day of April, 1894, till the levy of the writ of attachment, the plaintiff was in the actual and peaceable possession of the land. Whether he was there of...