1 I. The case is peculiar in some of its. features. In such a case we should be favored with an argument from both parties. It is thought the injunction should have been dissolved on the face of the pleadings, because it should not have been granted; the reason being that defendant had a plain, speedy, and adequate remedy at law, there being a bond in the replevin suit giving ample security for any resulting damage. This is not an equity proceeding, in which that rule is so generally announced, but is a law action. Oonceding, for the purposes of the argument, that defendant is right in his claim that property has been taken and is being held by the plaintiff that is not included in *343the mortgage, nor in the writ of replevin, and we meet one of-the peculiar features of the case, in this: that property is held-by plaintiff which he is about to sell, against which the writ, is not directed, and which plaintiff must hold as a trespasser... Defendant asks for the return of such property and for damages. It is in the nature of a cross action. Section 3386,. Code 1873, provides that “in all cases of * * * injury,, where the party injured is entitled to maintain and has-brought an action by ordinary proceedings, he may in the-same cause pray and have a writ of injunction against the-repetition or continuance of such * * * injury,” etc~ Aside from the above language, we know of no law to authorize the issuance of the injunction in this case. To authorize-the writ, the defendant must have been entitled to maintain,. and must have brought, an action by ordinary proceedings,„ as a remedy for the injury in taking the property. Is what" defendant has pleaded, and in which he asks judgment, an*, action by ordinary proceedings, within the meaning of the-statute? A counterclaim in an action of replevin is not: allowed. Code 1873, section 3226. But, in McIntire v. Eastman, 76 Iowa, 455, we held in a replevin suit, and: when considering section 3226, that it did not prevent: defendant, from whom property had been taken on such as writ, from asking for its return, and for damages for its-detention. After stating the provision of section 3226, it is said, in that case: “But it is evident that it is not the-purpose of that section to prevent a recovery, by any party to*, the action, of the property to which he is entitled, and damages for its detention.” The case seems to recognize such-a proceeding as one for the recovery of property, and we think, it is so far an action as to come within the meaning of the-statute permitting an injunction in aid of the proceedings.. If such a ruling can be sustained, it would seem to be in accord with the spirit of the statute. There is no attempt by" defendant to interfere with what is conceded to be property mortgaged, — and what is not mortgaged plaintiff does not *344claim, — but the issue is as to certain property being included in the mortgages. As a general rule, it would seem as if such a question ought to be settled in advance of a sale, and especially so where one is responsible for property of third parties, the sale of which might present difficult questions for adjustment. The reasoning in McIntire v. Eastman, supra, is that, in so far as it can well be done, one suit should determine the matter of title, right of possession, and matters that arise therefrom. Our view of the present question is in harmony with such a rule.
2 3 II. The issues of fact arising on the motion to dissolve the injunction were tried upon affidavits, and witnesses examined on the hearing. The mortgages describe the property pledged as follows: “All of my stock of goods, jewelry, silverware, glass, and queensware, of every kind and description, and all goods and merchandise now or hereafter in my store in the building and room known as ‘406 East Sixth (6th) Street,’ in the city of Des Moines, Iowa, and all furniture and fixtures therein, including safes; said stock consisting of diamonds, watches, watch cases and movements, clocks, jewelry, optical goods, silverware, glass, and queensware, and decorated goods, and other articles of merchandise.” Much of the evidence taken is directed to questions of fact whether of not certain articles taken, such as jewelry scales, a regulator, bench stools, and bench lamp, uome within the meaning of the words in the description, “all furniture and fixtures therein,” or “other articles of merchandise,” and whether certain articles in dispute are those with which a jeweler or optician habitually earns his living. The evidence includes that of experts, and it is much in conflict. Appellant thinks this proceeding is an equitable one, so that we determine such facts anew; but we do not concur in that view. The hearing is upon a motion in a law action, and we know of no rule that changes the forum where such questions arise in a law action. There was no attempt to change the forum for the *345purposes of the motion, but the hearing took place in the proceeding as it was instituted. The -motion was to dissolve the injunction as a whole, and not as to any particular part of the property affected by it. We need not consider the case as to all the items of property involved, as, if the injunction should stand as to part, we cannot interfere, for no such question is presented, nor was it the duty of the court to sift out particular property to exempt it from the operation of the injunction when no such relief was asked. As we have said, the evidence as to whether certain articles of property constituted part of a stock of jewelry, etc., or was furniture or fixtures in a store like that conducted by defendant, and also whether certain articles were tools with which a jeweler or optician earned his living, is conflicting, and we do not disturb the finding of the court below under such circumstances. The law does not determine such questions, for, as appears in this case, experts differ as to the conclusion; The law makes no presumption as to what is proper furniture in a store, what is legitimately part of a stock of goods of a particular nature, nor what tools a particular artisan uses. Such questions are of fact when they arise. These conclusions are decisive of this case with us. The district court refused to disturb the injunction after a consideration of the facts. The order of the court is aeeirmed.
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