Kern v. Wilson

82 Iowa 407 | Iowa | 1891

GriVEW, J.

I. Defendant, in support of his plea of former adjudication, introduced in evidence the files i. contbesion : diü“teiún.d3u and records of the circuit court in cases of Olney & McDaid v. J. C. Dwyer and of J. B. Kern & Son v. H. GK Wilson, sheriff. It appéars from this record that in the former case an attachment was issued and levied upon the goods in question, , and these plaintiffs intervened, and claimed the goods by virtue of their mortgage. The defendant Dwyer failing to appear, default and judgment were entered against him, with an order for a special execution against tlie attached property. It does not appear that any proceedings whatever were had upon the plaintiff’s petition of intervention, or that their claim to the property was in any wise ■ considered or adjudicated. In the other case these plaintiffs claimed, as in this, the stock of goods, by virtue of the same chattel mortgage, and the defendant claimed the stock by virtue of the same attachment. The case went to trial, and after both parties rested, and upon the motion of the defendant herein, it appearing to the court that the notice required and contemplated by chapter 45, Laws of the Twentieth General Assembly, had not, prior to the commencement of this action, been served upon the defendant, the court directed the jury to retain a verdict in favor of the defendant, and fixing the value of the property in controversy at five hundred dollars; and thereupon, finder said direction, the jury returned their verdict as follows : “We, the jury, find for the defendant, that he is entitled to the possession of the property in dispute, and we find the value to be five hundred dollars.” The plaintiffs made a motion in arrest of judgment and for a new trial, which was overruled, and judgment was entered upon the verdict, “that the defendant have and recover of and from the plaintiffs herein the property taken upon the plaintiffs’ writ of replevin herein, together with the costs of suit, taxed at forty-three dollars and thirty cents; said property to be released into the custody of the defendant.”

It is evident from these records that there was no decision upon the merits of the respective claims of these parties to the property in question in either case. It is said in argumeut that in the former the petition of intervention was not filed until after the default was entered, and, being too late, was not considered. The record fails to show when it was filed, but it also fails to show any adjudication upon it. In the latter case the verdict and judgment are based solely upon the want of notice. The defendant’s motion was in the nature of a motion for nonsuit, and the judgment, being entered simply because of the want of notice, is one of dismissal rather than upon the merits. The basis upon which an adjudication bars a further action is that the same matter was or should have been adjudicated in the former case. The claims of these parties to this property were not, and, unless notice of ownership was waived, could not be, adjudicated in the former case between them. See, upon this subject: Arnold v. Grimes, 2 Iowa, 1; McCormick v. Grundy Co., 24 Iowa, 383; Pfiffner v. Krapfel, 28 Iowa, 27; Moomey v. Maas, 22 Iowa, 380; Standish v. Dow, 21 Iowa, 363; Delaney v. Reade, 4 Iowa, 292; Boyer v. Austin, 54 Iowa, 402; Atkins v. Anderson, 63 Iowa, 739; Griffin v. Seymour, 15 Iowa, 30. As the evidence failed to show a former adjudication of any of. the matters in issue in this case, there was no error in withholding that defense from the jury.

II. The appellant complains of the fourth instruction, wherein the court instructed that the description 2 cn>.TT-Ei.mort- ' ftaKe; descrip-construction. "the mortgage “is sufficiently specific to cover and embrace all property or goods sold by the plaintiffs to Dwyer, which are of the kind, nature and description usually and ordinarily kept in said drug stock,” and that the “plaintiffs cannot recover, under the mortgage, any furniture or fixtures, nor for any goods or property, not ordinarily and usually understood as being included in the term ‘drug stock.’” The invoice shows that there were many articles, such as lamps, lamp chimneys, burners, fixtures, glass, cliinaware, toys, stationery, paints, varnishes and notions, kept in the stock. There was no evidence to show that such goods were ordinarily kept in the stock in controversy, or in connection with drugs. The appellant contends that it was the duty of the court to construe the mortgage, and instruct the jury what portion of the goods was included therein, and that the goods other than drugs proper should not have been included. Jurors, as well as courts, may act upon matters of common knowledge, and it certainly is a matter of common observation that such articles as are enumerated in tte invoice are usually kept for sale in connection with, drugs in retail drugstores. We think the instruction "was correct, and that the court properly left to the jury to say which of the articles was usually included in the term “ drug, stock.”

III. The plaintiffs’ mortgage was indexed as from “J. C. Dwyer,” and the court instructed that the 8-_. notioe. fndexITilhts of creditors. record did not impart constructive notice, Cl‘unless you find from the evidence that phe defendant or the intervenors had actual notice of said mortgage.” There was testimony showing actual notice of the mortgage shortly preceding the_ levy. The appellant complains of a refusal to instruct that if Olney & McDaid sold goods to- Dwyer subsequent to the mortgage, and without notice thereof, and that the plaintiffs knowingly permitted Dwyer to purchase and intermingle such goods with the stock, they are estopped from enforcing their mortgage against the property. This instruction was rightly refused. There is no allegation of fraud against the plaintiffs. It is not claimed that they purposely concealed their mortgage by erroneously indexing it or otherwise. The attaching creditors had no lien upon the goods prior to their levy, and, if they had actual notice of the mortgage before the levy, they are bound by the mortgage. Instructions against which no objection is urged were ■ given upon the subject of intermingling goods subsequently purchased. Both parties were creditors of Dwyer, and, in the absence of fraud, the attaching creditor is bound by the mortgage, if he had actual notice thereof before he made his levy.

IV. The appellant contends that, under the plaintiff’s notice of ownership, they were only entitled to 4. -: notioe of ownership: sufficiency. maintain the action as to the drugs. The notice is that they are “the owners of a certain stock of drugs by virtue of a chat,tel mortgage executed to us by J. C. Dwyer on August 1, 188b.” It is true the description here used is “a certain stock of drugs,” instead of “drug stock,” as used in the mortgage; but by the notice reference is made to the mortgage, which, discloses that it is “the drug stock,” and not a certain stock of drugs; that is claimed. We think the notice .was sufficiently specific to advise the officer what goods were claimed.

Y. An invoice was taken of all the goods levied upon the next day after the levy, which invoice JJIU to siooic. invoice: evidence. was in evidence. The appellant complains of the admission of this invoice m evi- . dence, and permitting the jury to consider the same without limiting its use. In view of the instructions as to subsequently acquired goods, and the intermingling thereof with the original stock, and the testimony as to the identity of the original stock and subsequently purchased goods, there was no error in admitting the invoice, and permitting it to be taken by the jury under the instructions.

YI. The court, having instructed that the plaintiffs were not entitled to recover for goods added to the original stock after the mortgage was made, submitted special interrogatories, to all of which the jury did not directly answer, but returned with their verdict a statement in detail of the items, and the value of each, found by them to belong to the original stock, and answered that the additions amounted to from seven hundred dollars to twelve hundred dollars. This return is a complete answer to each of the interrogatories not directly answered by “Yes” or “No,” and shows what of the goods levied upon belong to the original stock, and what was acquired after. The verdict and findings are in harmony.

YII. The appellant further contends that the verdict is contrary to the evidence in that the evidence does not support the finding as to goods belonging to the original stock. We think the evidence fully sustains the findings and verdict in that respect. It is asked: “How, then, were the jury to determine what stock was covered by the mortgage, and what not?” They could determine, from their common knowledge as to the kind of goods usually kept in “drug stocks,” and by the evidence of witnesses identifying articles as being of the original stock, or subsequently purchased, just what came under the mortgage, and what not.

Our examination of the case leads to the conclusion that the judgment of the district court should be AFFIRMED.