34 Iowa 590 | Iowa | 1872
In our opinion the demurrer was erroneously sustained. The amendment to the cross-bill claims and seeks a recovery for the value of the boilers, the title of which was settled in defendant by the decree rendered in the case. The right of defendant to such proceedings for relief, was determined by this court in an adjudication upon a former appeal in this case. No question as to their form or time when commenced is now before us. Defendant’s amended pleading sufficiently alleges his right to the boilers as settled by the decree and the fact that plaintiff still detains them. The decree provides no remedy whereby defendant may have the boilers restored to his possession ; it does not even direct that this may be done, nor does it provide for the recovery of their value by defendant. It declares his right to the property and nothing more. Equity, having acquired jurisdiction of the case, of the parties and the subject-matter, will retain it until justice be done. It will afford defendant proper relief, and this, it is claimed, in the cross-bill, should be a judgment for the value of the property.
We do not intimate that the cross-bill shows a state of facts that
3. The objection raised by the demurrer that defendant’s right to the relief claimed is cut off by the. statute of limitations, cannot be sustained. In the action, plaintiff claimed that the boilers were his property, and he sought to enforce the right which he set up thereto. Defendant in his cross-bill asserts his right to the boilers, and they were adjudged to belong to him. Until the decree, the rights of the parties to the property were involved in the suit, and it is plain the statute during that time did not run against defendant. By his amendment to the cross-bill, defendant seeks to enforce his right to the property which was settled by the decree. It is not a new proceeding or an independent action, but a continuation of the original action, and is not therefore barred.
The judgment of the district court sustaining the demurrer is reversed and the cause will be remanded for further proceedings not inconsistent with this opinion.
Reversed.