63 Iowa 641 | Iowa | 1884
I. The petition alleges that plaintiff is the absolute and unqualified owner of the property in controversy, and was in possession thereof when it was seized by the sheriff under an execution against, one J. T. Balm, which constitutes the alleged ground of detention of the property. The defendants in their answer deny the allegations of the petition, and aver that the sheriff levied upon the property an execution issued upon a judgment in favor of one Enslow, who is made a defendant,-and against J. T. Balm, which was rendei’ed by the district court of Lee county. They further allege that J. T. Balm is the’ owner of the property, and that the claim of plaintiff thereto is fraudulent,, and is made for: the purpose of protecting it from sale upon the execution. A copy of the judgment is attached to the answer as an exhibit. Neplying to the answer, plaintiff denied “that
These proceedings, we think, were erroneous. The plaintiff, in his reply to defendants’ answer, denied the existence and validity of the judgment, both of which were as plainly and directly put in issue as they were by the amended petition. The fact is alleged in each pleading that the judgment under which defendants justified the seizure of the property did not exist. As no objection was made to the reply, it must have been regarded as putting in issue the facts therein alleged, and these invelved the very existence of the judgment. It was not necessary to repeat the allegations in an amended petition. They had already been presented, and had raised an issue involving the sufficiency of the judgment and the validity of the execution. As this issue was plainly-raised by the reply, defendants could not have been surprised upon the offer being made to introduce evidence under it. We shall also hereafter see that the evidence they proposed to introduce, as stated in the affidavit for a continuance, was incompetent.
. Other questions discussed by counsel need not be considered. The questions ruled by us are decisive of the case.
Reversed.