138 Iowa 721 | Iowa | 1908
'November 15, 1905, plaintiff obtained judgment for something like $425 against defendant, John Swecker. This judgment was for some cattle which it was claimed that defendant took from plaintiff without his knowledge and consent, and appropriated to his own use. On December 5, 1905, defendant was declared a bankrupt by the United States District Court, and on January 29, 1906, was discharged as such bankrupt. A. Swecker died testate in July, 1906, and the money and property now held by the garnishee came to defendant through the said A. Swecker. In the motion to discharge the garnishee, the garnishee and the defendant pleaded the discharge in bankruptcy as the ground for such motion.
The action of trover proceeded upon the fiction that the defendant found the property and thereafter converted it to his own use, and generally was brought where defendant came into possession of the property rightfully. A demand was necessary therefor before suit was brought in order that the action would lie. The action of trespass involved the idea of the violation of a possessory right, as well as forceful damage. Unless the right of possession was somehow violated or invaded, the action of trespass would not lie. 3 Street’s Foundations of Legal Liability, 234-236. And suit could only be maintained against the immediate wrongdoer. The action of case would lie at common law for what was known as secondary trespass; that is to say, in cases where the act itself directly produced the wrong, the action was trespass, but where the act itself did not directly produce the injury, but the damage resulted as a consequence and not directly from the trespass, the action was trespass on the case. 3 Street on Foundations of Legal Liability, 252, 253. If the act complained of was simply a negligent one, trespass would not lie, but case would. As stated by Street, if a person willfully causes a direct and immediate injury to another, trespass was the only available remedy. Street, 265. In the action of trespass the proper measure of damages was the value of the property. Street, 237. And property was ascribed to the defendant for the purpose of holding him liable for the value of the goods. These distinctions are recognized and pointed out in Moses v. Arnold, 43 Iowa, 187, wherein it is held that the tortious taking of property which has not been sold by the wrongdoer will not support an aver
The order denying the motion to discharge is correct, and the judgment must be and it is affirmed.