Turner v. Younker

• Decision Date: 20 December 1888
• Citation: 41 N.W. 10,76 Iowa 258
• Parties: TURNER v. YOUNKER et al
• Court: Iowa Supreme Court

41 N.W. 10

76 Iowa 258

TURNER v. YOUNKER et al

Supreme Court of Iowa, Des Moines

December 20, 1888

Decided October, 1888.

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

ACTION for the recovery of specific personal property. Plaintiff claimed to have purchased the property from James S. Lewis. Defendant Hardin is marshal of the city of Keokuk. He seized the property under a writ of attachment issued by the superior court of Keokuk in an action in which defendant Younker was plaintiff and said Lewis defendant. Defendants in their answer, denied that plaintiff was the owner of the property, or that he had it in possession at the time of the seizure. They also alleged that the sale by Lewis to plaintiff, if one was in fact made, was fraudulent and void as against creditors. The jury found that plaintiff was entitled to the possession of the property, that its value was ninety dollars, and that he had sustained damages in the sum of seventy dollars in consequence of its detention; and in accordance with his election to take a money judgment for the whole of the property, the court entered judgment for one hundred and sixty dollars, and defendants appeal.

REVERSED.

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

Anderson & Davis, for appellee.

OPINION

REED, J.

I.

Plaintiff, being a non-resident of the state, was required to give security for costs. By agreement of parties he was permitted to deposit a sum of money with the clerk in lieu of a bond. Afterwards defendants moved the district court to require him to give additional security, alleging that the amount of money deposited was inadequate security for the costs likely to accrue in the case. The court overruled the motion, and that ruling is assigned as error. The question raised by the motion was addressed largely to the discretion of the court, and we deem it sufficient to say that it does not appear to us that there was any abuse of that discretion in the action complained of.

II. The petition purports to have been sworn to before a justice of the peace. Defendants moved the court to instruct the jury that, as there was no evidence tending to show that the pleading was properly verified, their verdict should be for them. They also moved in arrest of judgment, alleging that the person before whom the petition purported to be verified was not a justice of the peace. Both motions were overruled. The rulings are correct. A question as to the sufficiency of the verification of a pleading cannot be made upon the trial. By answering and going to trial, defendants waived the defect, if one existed; and the fact alleged does not afford ground for a motion in arrest. Where the averments of fact in the petition do not entitle the plaintiff to any relief, advantage may be taken of the defect by a motion of that character; but that is the only ground for such motion recognized by the statute. Code, secs. 2650, 2842.

III. On the day following that on which the property was seized plaintiff caused a notice in writing to be prepared, in which his ownership of the property, and the other facts required by the statute, were alleged. This notice was verified, as required by law, and it was left at the office of defendant Hardin, to whom it was directed, and it afterwards came into his hands. He thereupon demanded of his co-defendant, Younker, an indemnifying bond, which was given. On the trial, defendants objected to the admission of the notice in evidence, on the ground that it had not been properly served; but the objection was overruled. The statute does not prescribe the manner in which the notice shall be served. It provides simply that if, after the levy, the officer shall receive...