184 Iowa 734 | Iowa | 1918
The plaintiff claims to be the absolute owner of three pool tables and accompanying balls, cues, racks, a card table, gas tank, ice box, and billiard pocket blocks, and sued out a writ of replevin for the possession thereof. The cause of detention was alleged to have been the sale of the property upon execution, issued on judgment entered in the justice court of Esquire Smith, without jurisdiction, as is alleged. The answer was a general denial.
“Upon such order being made, at least sixty days’ notice of the pendency of such action shall be given by posting up written or printed notices in three public places in the township where the action was commenced, which shall have the effect of a service by publication in the district court, and the justice shall proceed to hear the cause upon the day specified for that purpose.”
There was no showing that any affidavit such as con
Whether, on proper- procedure, a justice’s entry may be corrected by inserting such an order, need not be considered. If the attached property is disposed of by this procedure without personal notice, it is important that the record shall contain enough to indicate that the statutory requirements have been pursued in sequestering the defendant’s property to the payment of his debts. It is too well settled to require the citation of authority that the requirement of statutes authorizing constructive service must be strictly followed and- literally complied with. The filing of the affidavit, then, was a condition precedent to “an order fixing the day for the trial,” and the service of notice by publication in the manner directed. See Priestman v. Priestman, 103 Iowa 320. Moreover, there was no proof of the service of such notice on file with the justice, and we are satisfied from the record that the statute with reference to service of notice by posting was not pursued, and that the entry of judgment was without jurisdiction.
“Q. Do you know who owned this property? A. Yes, sir. Q. Who? (Over objection, the witness answered.) A. Ollie Carr. I know Ollie Carr owned this property because I was with him when he bought the stock, and helped him ship it up there, and was there when he put the stuff in the building. I mean by 'stuff’ the same property I described awhile ago.”
The witness testified further that he operated the pool hall for one half of the net profits. There was no evidence tending to show that the property had subsequently been disposed of, save a letter from Carr to defendant’s attorneys, written February 26th, in which, after promising payment of different items, he added:
“In regard to selling the tables, the tables don’t belong to me, and have not for over two years. So I don’t know how things will come out, if you sell another party’s tables to pay my debts. However, I would like to have the thing settled at once. You can ’phone to Boone, Iowa, and find out who owns the tables at Scandia, Iowa. If I could get word from my agent at Scandia, it would not take long to fix things up.”
What is here said, when construed in connection with his evident anxiety to settle and pay the defendant’s claim, certainly casts some doubt upon the bona fides of his assertions that the property did not belong to him. His ownership of the property would be presumed to continue until the contrary appears (Sigler v. Murphy, 107 Iowa 128); and the court might have found, from all the evidence, that plaintiff continued to be the owner of the property, and had not disposed of it.
Some question is raised as to whether a demand was made for the possession of the property before the beginning of suit. Such a demand was made; though, as the possession was wrongful, this was unnecessary. We reach the conclusion that the judgment against Brown should be Affvrmed, and that against King & Tomlinson and the members of that firm, Reversed.