Taylor v. Grimes Canning Corp.
| Decision Date | 20 November 1934 |
| Docket Number | No. 42550.,42550. |
| Parties | TAYLOR v. GRIMES CANNING CORPORATION et al. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; O. S. Franklin, Judge.
Plaintiff commenced an action of replevin for the possession of certain articles of personal property purchased at public auction by the plaintiff at the sale of defendant Grimes Canning Corporation. At the close of the sale plaintiff tendered in payment to defendant past-due note, and defendant refused to deliver to plaintiff the property knocked down to plaintiff. Plaintiff filed a motion to strike and for judgment nil dicit, which was overruled; and then filed a motion for judgment on the pleadings, which was sustained. Defendants appeal from the ruling sustaining the motion for judgment. Opinion states the facts.
Reversed.
Carr, Cox, Evans & Riley, of Des Moines, for appellants.
Tolbert O. Moore, of Des Moines, for appellee.
On December 20, 1932, the Grimes Canning Corporation held a public auction sale at Grimes, Iowa. At said time and place it offered for sale a two-row cultivator, four cows, and one colt. The terms of said sale were cash on delivery of the property. At the said auction sale the appellee, J. L. Taylor, bid the amount of $286, which bid was duly accepted by the auctioneer. At the close of the sale Taylor tendered a past-due, unpaid note, executed by the Grimes Canning Corporation to his wife and duly assigned to appellee, in excess of the amount of articles purchased, and the appellee offered to credit thereon the amount of the purchase price of the articles in question, and demanded possession of the articles. The corporation refused to deliver the articles until it had been paid for them in cash in the amount of the bid, to wit, the sum of $286.
On the 22d day of December, 1932, Taylor, plaintiff in the court below and appellee in this court, filed a petition in replevin in the usual form praying judgment against the Grimes Canning Corporation for the possession of the property described in his petition, being the property which he purchased at the auction sale; and that a writ of replevin issue to the sheriff of Polk county, Iowa, ordering and directing said sheriff to take possession of said property and deliver same to Taylor, and for damages in the amount of $40 for unlawful detention of said property, and attorney's fees and costs.
On February 7, 1933, the appellants filed answer to the petition, in which they denied that the appellee was the owner of any of the property described in his petition, and alleged that the property belonged to the appellants; that on December 20, 1932, the Grimes Canning Corporation held a public sale in the town of Grimes, Iowa, at which the property described in appellee's petition was offered for sale, and upon an auction thereof the appellee offered to purchase the same and offered to pay therefor the sum of $286; that the terms of said sale were cash on delivery of the property; that the appellee had not paid in cash the amount bid and hence acquired no title thereby and is not entitled to possession thereof; and prayed that judgment be entered against the appellee, declaring and confirming the right of the appellant corporation to possession of the property described, and that in lieu of the property, the appellant have judgment against the appellee for the sum of $286, plus interest and costs.
A writ of replevin was duly issued. On February 9th the appellee filed an amendment to his petition, in which he set up the fact that he had been declared the purchaser of the property described in his petition, and tendered to an agent and representative of the appellant company one certain promissory note in the sum and value of more than the purchase price of all the articles purchased by him, which promissory note had been made, executed, and delivered by the appellants and had been assigned to the appellee, who was at that time the owner and holder of said note and who then and there indorsed his name on the back of said note upon and at the time of tendering the same to the appellants in payment of the articles declared sold to him by the auctioneer, and that at said time said note was wholly due and unpaid and owing from the appellants to the appellee.
On February 15, 1933, the appellee filed in the lower court a pleading designated, “Motion to Strike and Judgment Nil Dicit,” which was as follows:
“Comes now the plaintiff and moves the Court to strike the Answer of the defendants herein and for judgment nil dicit to be entered herein for the following reasons:
1. Said Answer raises no issue in this case.
2. Said Answer sets forth no facts not previously pleaded in the plaintiff's petition.
3. Any statements or conclusions of law set forth in the defendant's answer not included within the allegations of the plaintiff's petition are such as in no way raise an issue nor entitle the defendant to any relief under his Answer and are overruled by the defendants' own admissions in said Answer.
4. That the defendants have pleaded no facts showing them to be entitled to any judgment as asked for in their prayer.
Wherefore, plaintiff prays said Answer be stricken and the plaintiff have judgment against the defendant herein as on no issue raised.”
On February 25, 1933, an order was entered in said court and cause by the Honorable F. S. Shankland, judge, as follows:
On February 28, 1933, appellee filed in said court and cause the following:
“Motion for Judgment on the Pleadings.
Comes now the plaintiff and moves the court to enter judgment on the pleadings against the defendants herein and shows the court that the defendants' answer sets up no defense which will bar the plaintiff's right to judgment herein.
Wherefore, the plaintiff prays for judgment on the pleadings.”
On March 7, 1933, the appellants filed in said court and cause the following:
“Resistance to Motion for Judgment on the Pleadings.
Now come the defendants, Grimes Canning Corporation and A. Dunbar, by their attorneys, Carr, Cox, Evans & Riley, and in resistance to the motion of the plaintiff for judgment on the pleadings, respectfully show to the Court and state:
That the motion to which this resistance is filed was filed herein on February 28, 1933.
That prior thereto and on February 15, 1933, the plaintiff filed a motion to strike and for judgment nil dicit.
That the motion filed herein on February 15, 1933, was submitted to and ruled upon by this Court on February 25, 1933, and that the ruling thereon was against the plaintiff and in favor of the defendants.
That the motion to which this resistance is addressed raises the same issue as was raised by the prior motion; that said prior motion prayed for judgment against the defendants as on no issue raised; that no pleadings have been filed herein by either party subsequent thereto, and that the present motion also prays for...
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