Weaver v. Kintzley

• Decision Date: 21 April 1882
• Parties: WEAVER v. KINTZLEY
• Court: Iowa Supreme Court

12 N.W. 262

58 Iowa 191

WEAVER v. KINTZLEY

Supreme Court of Iowa, Des Moines

April 21, 1882

Appeal from Boone District Court.

THE petition sets forth, in substance, that the plaintiff purchased a stock of drugs of the defendant, and executed to him a chattel mortgage thereon for a balance of $ 750 of the purchase-money, which became due in installments; that being unable to pay the said installments as they became due, the defendant, by the sheriff of the county, took possession of said goods, and that afterwards, the defendant fraudulently and with intent to deprive plaintiff thereof, converted the same to his own use by selling them to certain parties; that the said goods, at the time they were so fraudulently converted, were of the value of $ 2,500. Judgment was demanded for the damages sustained.

The defendant answered by setting up the mortgage, and averring a sale under the same, and in strict accord therewith, and denying all fraud.

The plaintiff replied by admitting that a sale was had, but averring that the same was fraudulent, because the notice therefor was insufficient, and because the defendant did all in his power to keep said sale a secret, and for other reasons not necessary to state.

A jury was empaneled, and upon the second day of the trial, the plaintiff amended her petition by setting up, among other things, substantially the same averments, as to fraudulent acts attending the sale, as were pleaded in the reply. There were also other allegations of fraud in the amendment. Thereupon the defendant made a motion to strike out the amendment for the reason "that plaintiff cannot base his action at law upon an illegal or voidable sale; that the matter stated is matter in equity for avoiding the sale and cannot be heard at law in the present action." The motion was overruled. There was a verdict and judgment for the plaintiff, and defendant appeals.

AFFIRMED.

Kidder & Crooks, for appellant.

Green & Mitchell, for appellee.

OPINION

ROTHROCK, J.

I.

Counsel for appellant say that "this case presents the question whether, when a sale of chattels has been made under the power contained in a mortgage, the mortgagors can go into a court of law and have a jury determine the question of the irregularities in the sale, and give their verdict for the excess of the value over the debt."

Whether this can be done, or not, is probably dependant somewhat upon the facts, as to the condition of the property when the action is commenced. If it be in the hands of an innocent purchaser, so that an equitable action to set aside the sale could result in no relief, excepting a judgment against the mortgagee for the damages sustained, it would seem that an action at law would be the proper remedy. However that may be, we think the motion to strike out the amendment to the petition filed during the trial was properly overruled.

By section 2514 of the Code it is provided that an error of the plaintiff, as to the kind of proceedings adopted, shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings, and a transfer of the action to the proper docket.

Section 2516 is as follows: "The defendant may have...