Cable Co. v. Miller, 173 Iowa 384

Cable Co. v. Miller

173 Iowa 384 | Iowa | 1916

Weaver, J.

Appeal and error : proceeding on remand: replevin: value of property: procedure. The former appeal settled conclusively the defendant’s title to the property and right of possession. That being determined, the kind of judgment to be entered depended, in the first place, upon whether . , . possession had been obtained by plaintiff A * A ^der the writ, and, in the next place, upon whether defendant should elect to take judgment for possession of the property in kind or for a money recovery for its value. The record then before us not disclosing all the conditions, the ease was remanded, with instructions to the trial court to enter the proper judgment. This was the trial court’s sufficient authority to entertain defendant’s motion for money judgment; and, if the record already made was not, in its opinion, sufficient to *386enable it to pass upon and determine the question of fact, we can discover no reason for -denying it the power to call for the production of evidence thereon. It would have been, perhaps, more regular if, instead of overruling the motion for money judgment, the court had either withheld its ruling or sustained the motion, subject to the determination of the amount upon consideration of the evidence to be offered upon, the question of value. Defendant having elected to take a money judgment, his right to such judgment is absolute, the only question remaining open to the court being the proper amount at which such value is to be assessed. But the course taken by the trial court is calculated to effect the same result, and there was no error therein requiring an appeal to this court to cure. The proceeding calls for no new trial in the ordinary sense of the term, nor further pleading or framing of issues. The defendant is entitled to recover the full fair value of his property. He cannot rightly demand more; and, on the other hand, the plaintiff cannot rightly ask or expect him to take less.

Some argument is offered upon the proper measure of the value of the piano, but that is governed by simple elementary rules, upon which neither trial court nor counsel is likely to go astray, and we will not prolong this opinion for their discussion.

The rulings below will be affirmed on both appeals. The .plaintiff will pay the cost of its own abstract. Other costs will be taxed to the defendant. — Affirmed.

Evans, C. J., Deemer and Preston, JJ., concur.