49 Iowa 351 | Iowa | 1878
This being the attitude of the ease the court ought not to have recognized the stipulation for judgment made by the defendant, Porch, but should have inquired into the truth of the allegations contained in the answer, and if, upon such inquiry, the court found that the liquors were in custody of the law, under provisions of the statute, the court should have rendered judgment for the return of the liquors to the custody of the officer, and, in default of such return, for their value. See Funk & Hardman v. Israel, 5 Iowa, 438; State v. Harris & Folsom, 38 Iowa, 242; Monty v. Arneson, 25 Iowa, 383.
III. It is claimed, however, that no exception to the ruling upon the motion was taken by Porch, or in his name, and that consequently no appeal can be prosecuted in his behalf. This obj ection is purely technical. The record shows that the attorneys who filed the motion and prosecuted the suit against said liquors excepted for the State of Iowa and prosecuting witness. The State, as a party to the proceeding for the condemnation of the liquors involved in this action, was the real party in interest, and an exception on behalf of such party fairly saves the question for review. An exception in the name of Porch would, at the most, have been merely formal, as it cannot be claimed that he desired any exception taken or would have authorized it.
REVERSED.