Turner v. Hardin

Decision Date03 June 1890
Citation45 N.W. 758,80 Iowa 691
PartiesTURNER v. HARDIN et al
CourtIowa Supreme Court

Decided October, 1890.

Appeal from Lee District Court.--HON. J. M. CASEY, Judge.

ACTION to recover possession of specific personal property and damages resulting from its detention. There was a trial by jury, and a verdict and judgment for plaintiff. The defendants appeal.


John P Hornish, J. F. Smith and Craig, McCrary & Craig, for appellants.

James C. Davis, for appellee.



The defendant Hardin, as marshal of the city of Keokuk, seized the property in controversy under a writ of attachment issued by the superior court of the city of Keokuk in favor of defendant Younker, and against the property of James S Lewis. Plaintiff claims that he purchased the property of Lewis prior to the levy, and that it was in his possession at the time of the levy. The defendants deny the alleged purchase by plaintiff, and aver that if a sale was made by Lewis it was made for the purpose of hindering, delaying and defrauding the defendant Younker, in pursuance of a fraudulent conspiracy between Lewis and plaintiff, and is fraudulent and void. The jury assessed the value of the property at $ 155.75, and the damages for its detention at two hundred and ninety-three dollars. Judgment was rendered in favor of plaintiff for $ 448.75 and costs. This cause has heretofore been considered by this court. See 76 Iowa 258.

I. The deposition of James S. Lewis taken upon interrogatories was filed, and notice thereof given, on the fourteenth day of February, 1889. The term of court at which the cause was tried commenced on the fourth day of March, 1889, and on the twenty-second day of that month defendants moved to suppress the deposition on the ground that the certificate of the notary who took the deposition did not show that neither of the parties, their agents or attorneys, was present at the taking of the deposition. The motion was overruled. The certificate does not state whether anyone was present excepting the witness and the officer during the examination. Section 3738 of the Code provides that, "where a deposition is taken upon interrogatories, neither party, nor his agent or attorney, shall be present at the examination of a witness, unless both parties are present or represented by an agent or attorney, and the certificate shall state such fact if party or agent is present." The statute does not require the certificate to show the fact when neither party nor agent is present, and where the certificate is silent as to the fact, and there is no showing to the contrary, it will be presumed that the requirements of the law have been observed. In the case of Sheriff v Hull, 37 Iowa 174, the evidence in regard to the depositions showed affirmatively that one of the parties was present while they were being taken, and that the other was not. The ruling of the court in denying the motion was right on the merits, and was right for the further reason that the motion was filed too late. See Code, section 3751, as amended by chapter 26, Acts of Seventeenth General Assembly.

II. The evidence shows that at the time the property in question was taken the plaintiff and Lewis resided in Illinois; that prior to that time Lewis had done some business as a huckster; that he had used the property in controversy in that business that he sold the property to plaintiff in consequence of a determination he had formed to quit the business; that as a part of the agreement of purchase plaintiff was to haul from the home of Lewis to Keokuk, a distance of about thirty miles, a load of eggs; that, on the day of the attachment, plaintiff and Lewis were in Keokuk with the eggs, and that, after they were unloaded, the writ of attachment was levied. The defendants offered to show that after the levy had been made Lewis asked of the person offered as a witness "who he could get to go on a bond * * * so as to release his team," and in that conversation stated that he and plaintiff "had put up a bogus sale to beat Younker out of his attachment; and that they wanted to get the team so as to beat Younker out of his claim against Lewis." The court sustained an objection to the offered evidence, and it was excluded. It might perhaps have been proper for the purpose of impeaching Lewis, had the proper foundation been laid. It is quite clear from the record that it was not offered for that purpose, but to show that plaintiff was not in fact the owner of the property by showing that the alleged sale was fraudulent. The declarations which defendants proposed to show were made...

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