Chapin v. Garretson

85 Iowa 377 | Iowa | 1892

Given, J.

I. The plaintiff filed an amendment to the defendant’s abstract, wherein she “denies that the 1. Practice in supreme court: record. appellant’s abstract presents here the rec-ord as it should be. for the purpose of presenting the appellant’s appeal,” and “amends the appellant’s abstract as follows, for the purpose of presenting her appeal to this court, and does not undertake to correct mistakes or supply defects in the appellant’s abstract. ” Nothing further being presented by the defendant (appellant), this denial must be taken as true, and the defendant’s abstract held tobe incomplete; therefore the case cannot be considered upon the defendant’s appeal.

II. The plaintiff contends in support of her appeal that the court erred in overruling her motion to strike from 2. Replevin: chattel mortgage: counter claim. the answer that part asking judgment for the return of the goods not covered by the mortgage, and alleged to have been wrongfully taken and converted, or judgment for their value. Thé contention is that this is not allowed under section 3226 of the Code. That section is as follows: “The action shall be by ordinary proceedings, but there shall be no joinder, of any cause of action not of the same kind, nor shall there be allowed any counterclaim.” The right to plead that other property than that covered by the mortgage was taken under the writ is not questioned, but it is the right of the defendant to judgment in this action for the return or value of the property so taken that is controverted. This claim of judgment is clearly a counterclaim, as defined in section 2659 of the Code, and is, therefore, not allowable under section 3226.

III. The plaintiff (appellant) complains of the first paragraph of the court’s charge, which is as follows: 3. Chattel Mortgage: description of property: construction. “First. You are instructed that by the term used m the mortgage, to-wit: ‘a stock of ladies’ notions,’ only such property is conveyed as is described immediately following said expression or term; also, that by the term ‘ladies’ notions,’ in said mortgage, only such goods are conveyed as are described immediately following said term; and also by the words, ‘all other goods now on hand, or to be purchased and used, in the business of a general millinery store,’ is meant only such millinery goods as may be on hand for sale, or may be purchased for sale, or made up and kept for sale.” The description in the mortgage is: “The general stock of millinery goods, stock of ladies’ notions, consisting of hats,” etc.; enumerating numerous articles, and concluding: “And all other goods now on hand, or to be purchased and used, in the business of a general millinery store.” The instruction is correct. “The general stock of ladies’ notions” is expressly stated as consisting of the articles enumerated; and clearly the words, “all 'the other goods now on hand, or to be purchased and used, in the' business of a general millinery store,” mean only such millinery goods as were on hand, or might be added by purchase, for sale, — that being the business of a general millinery store.

IV. This appellant’s further complaint is that the court erred in entering judgment against her for ninety-4. -: replevin: conversion. two dollars. The jury found that goods ^ va¡ue 0f ninety-two dollars, which were not included in the mortgage, were taken under the writ; and it was for this amount that judgment was entered against the plaintiff, and evidently upon the theory that the defendant might rightfully plead this counterclaim. We are of the opinion that the defendant was not entitled to recover in this action for goods taken not included in the mortgage; that while the question whether such goods were taken is properly triable for the purpose of determining the plaintiff’s right to the possession thereof, the defendant cannot recover therefor in this action.

For the reasons' stated, the defendant’s appeal will be dismissed, and upon plaintiff’s appeal the judgment of the district court is Reversed.