Tubbs v. Garrison

• Decision Date: 17 December 1885
• Parties: TUBBS v. GARRISON.
• Court: Iowa Supreme Court

68 Iowa 44

25 N.W. 921

TUBBS

v.GARRISON.

Supreme Court of Iowa.

Filed December 17, 1885.

Appeal from Harrison circuit court.

This action was brought against the defendant, Garrison, as sheriff of Harrison county, to recover for damages alleged to have been sustained by levy upon, and sale made by the defendant of, certain household furniture alleged to be exempt from execution, There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.H. H. Roadifer, for appellant. J. D. Garrison.

S. H. Cochran & J. H. Smith, for appellee, Charles Tubbs.

ADAMS, J.

1. The defendant admitted the levy and sale, at least in respect to some of the goods, but denied that they were exempt, because, at the time of the levy, the plaintiff had started with his family to leave the state. The defendant also pleaded that, even if the plaintiff, with his family, had not started to leave the state, he was estopped from denying that he had started to leave the state, because he started on a journey with his family and left the county, and, before starting, informed divers persons that he was intending to leave the state, which fact came to the defendant's knowledge, and the defendant, believing the plaintiff's statement, and relying upon the same as true, made the levy in question. The plaintiff demurred to so much of the defendant's answer as set up an estoppel, and the demurrer was sustained. The defendant assigns the ruling sustaining the demurrer as error. In our opinion the court did not err. The defendant was not justified in acting upon an expression of intention. It was the plaintiff's right to change his intention, as the defendant should have known.

2. The defendant introduced as a witness one Bolter, who testified that about July 2 or 3, 1884, he had a conversation with the plaintiff relative to his leaving the state. He was then asked to state what the conversation was. But the court, upon objection by the plaintiff, excluded the evidence, and the defendant assigns the ruling as error. The plaintiff did not start upon his journey until July 5th. A declaration of intention made after he started, or so near the time of starting that the declaration could be regarded as a part of the res gestœ, would have been admissible as tending to characterize the act. But we think the declaration was not made sufficiently near the time of starting to be properly regarded as a part of the res gestœ, and we know of no other ground upon which evidence of it could be admitted.

3. The defendant offered to show by one Massie, his deputy, that he was informed, before the levy, that the plaintiff had left the state. The evidence, under the plaintiff's objection, was excluded, and we think rightly. The plaintiff could not be held to lose his right of exemption by reason of any information which an officer or his deputy might receive.

4. The defendant offered to show by one Copeland that after the plaintiff started upon his journey, he went to the plaintiff's house, and found some of his furniture boxed up, and clothing and bedding in a confused condition. The court, under the plaintiff's objection, excluded the evidence, and we think rightly. The condition of the plaintiff's furniture might indicate an intentionto remove from that town, but we cannot say that it indicated anything more.

5. The defendant asked an instruction in these words: “If you find from the evidence that, prior to the time the officer levied upon the goods in question, the plaintiff had...