Klotz v. James

96 Iowa 1 | Iowa | 1895

Granger; J.

1 I. The defendant is ¡sheriff of Buena Vista county, and as such «seized, by virtue of-certain writs- of attachment, a store building, stock of goods, and other personal property, as belonging to one Henry Boe'se. The plaintiff brings, this, action to recover the property, claiming to be the owner by virtue of a purchase thereof, from Boese before the levy of the attachments. The- answer puts in issue the validity of the sale, and avers it to be fraudulent, as to creditors. The plaintiff used Henry Boese as a witness to- identify the bill of sale as signed by him, which is-dated August 18, 1898; also; to- show that he owned the goods up toi the date of the sale to- the plaintiff, and that, when the defendant came to. take the property by virtue of tbe writs, of attachment, he told him that be had sold the property to. the plaintiff. On crossi-examination the court permitted a full examination into the particulars of the transaction as bearing on its bonaftdes. We think that there was no error in the holding, in view of the evidence given on ■the direct examination. The effect of the direct examination was to1 show, or justify a conclusion by the jury, that there had been a valid or good-faith sale of the properly. If so, it was. proper, on cross-examination, to. disclose the circumstances of the transaction, when fraud was pleaded.

2 3 II. The defendant offered in evidence the returns of the several writs by which he held the property. Plaintiff objected to the evidence for the reason that tbs returns did not show that notice had been served on the attachment .defendant, or on any'person in possession of the property. The same question was presented in other ways., by questions and offers to show that no such notice had been served. The returns were admitted in evidence, and the court denied a motion to strike the writs and returns from the evidence because of the want of such a notice. Plaintiff complains of the action of the court in this respect. Reliance is placed on Code, section 2967, which provides the mode of attachment, as follows: “By giving the defendant in the action, if found within the county, and also the person occupying or in possession of the property, if it be in the hands of a third person, notice of attachment.” Reliance is also, placed on authorities like the following: Crawford v. Newell, 23 Iowa, 453; Phillips v. Germon, 43 Iowa, 101; First Nat. Bank of Newton v. Jasper County Bank, 71 Iowa, 488 (32 N. W. Rep. 400); Bank v. Kellog, 81 Iowa, 124 (46 N. W. Rep. 859); Commercial Nat. Bank v. Farmers’ & Traders’ Nat. Bank, 82 Iowa, 198, (47 N. W. Rep. 1080). These authorities clearly sustain the rule that to constitute a valid levy, the requirement of the statute must be observed. But is the rule .applicable to this case? The property was in the possession of the defendant by virtue of the attachments, whether legally so or otherwise. The plaintiff’s claim to the possession is not because the possession of defendant was illegal, for want of a valid levy of the writs', but because he owned' thiei property'; and hisi right of recovery was as perfect and complete if the levy' had been attended with a notice, as without it. His right of action is in no way based on a defective levy. The answer is in two divisions', — the’ first being based on the fact of the holding under the writs; and the second1 on allegations that the plaintiff is not the owner of the property, because of fraud in the attempted sale of it to . him. The jury returned a special finding that the sale was fraudulent. That is¡ a judicial determination that he does not own the property, and has no right to the possession. If plaintiff is not the owner, and hence has m> interest in the property, he is ini no position to question the validity of defendant’s possession. If he is entitled to the possession of the property, it is because be owns it, and not because defendant’s possession isi illegal. It is for those who have rights in the property to question defendant’s holding. As; to the finding of fraud, it must have been the same, regardless of the rulings of the court as to the notice, for the fact of notice could in no way affect the conclusion as to fraud. Inasmuch as the plaintiff was entitled to the possession of the properly, if he owned it, — that is, if the.sale was valid, — regardless of the validity of the levy, we do not see how the question of its validity was material, under the issues presented in the second 'division of the answer. What might have been the situation without the second division of the answer and the special finding, we need not con-aider. The record makes it conclusive that the ruling was without prejudice, if not technically correct.

4 III. Certain witnesses were used to prove the value of the stock of goods and of the building. It is urged that they were not shown competent; but we think that, while in some cases the showing of knowledge was meager, there was no prejudice, with an opportunity to cross-examine and show the real value of the testimony.

5 IV. At an examination before Judge Thomas, some time before the trial, Henry Boese was examined, and his testimony was reduced to writing, in shorthand, by Mr®. Wedgwood. Boese was also a witness on the trial of this case, a® we have before noticed, and his testimony on both examinations was as to the sale of this property. Mrs. Wedgwood was a witness in this case for the defendant, and after testifying that she reduced the- testimony of Boese before Judge Thomas to. writing, and stating that she took the testimony correctly, and could state his ■ testimony as. then given, she was permitted against objections, to examine the notes and state his testimony. The object was to. contradict his statements on the trial as to the consideration to' him for the transfer of the property to' the plaintiff. It is urged that a proper foundation was not laid to. justify the contradiction. This claim is likely based on appellant’s abstract. The abstract by appellee shows that on the examination in this case the attention of the witness was called to his former examination, so as to warrant the contradiction.

5 V. A notice designed to comply with the requirements of section 1, chapter 45, Acts Twentieth General Assembly, was served on the defendant prior to the commencement of this action. The notice is in the record, and also, a stipulation, made during the trial, that such a notice was served. The court submitted toi the jury the question of the sufficiency of the notice, and the jury found specifically that it was not sufficient. It isi urged that it was error to submit such a' question — First, because no such question was presented by the pleadings; and, second, because if such question was presented, it was one-for the court. We need not determine either question, because the service of the notice was but a condition precedent to a liability of the defendant sheriff. It had no other purpose. In, view of the finding that the sale was fraudulent, had it been) conceded on the trial that the notice was sufficient, the result of the case must have been the same. The admitted evidence had no bearing whatever on the question of fraud, and the result, as to the fraud, was- not aff ected by the rulings. The significance of the special finding of fraud in the sale is such that there can be no reversible error in the record unless error is involved in, or affects, the proceeding leading to- the conclusion- of fraud.

6 7 VI. After verdict the defendant elected to- take a money judgment for the value of 'his interest in the property, which was the full value of the property. The court entered judgment for -six hundred and forty-two dollars. A building which the jury assesses to be of the value of one hundred and fifteen dollars is included in this amount. The- return of the coroner to the writ of replevin shows that the building was not seized by virtue of it. The building then remained in the possession o-f the defendant. Appellant says that it was error to- enter judgmient for the value of the building, under such a state of facts. If it be conceded that the position is correct, we do not see that appellant can now take advantage of it. It does not appear- that this particular matter was- called to- the attention of the- court below, nor do we find an exception to the judgment which followed the overruling of the motion for a new trial. After the overruling of such motion, there seemed to be no objection to the judgment as entered. It may further be said that no assignment of error is sufficiently spetifie to present the matter in this court. The general, assignment that “the court erred in rendering judgment for the defendant” was directed1 to the entire judgment. It should point out the very error objected to, in as specific a way asi the cause will allow. Code, section 3207.

There is a claim that some of the instructions! are erroneous, but it seems to be based on appellant’s abstract. The amendment by appellee so changes the record that the claim is not well founded. The judgment is affirmed.