6 Iowa 204 | Iowa | 1858
— The error first assigned is upon the court allowing the plaintiff to read in evidence, the writ of replevin issued in the former suit in replevin by Hart against McGinnis; and the third assignment is to the allowing plaintiff to read in evidence the petition of said Hart, the plaintiff in replevin. The counsel have hardly laid open their objections, or rather the grounds of them, in their arguments in support of their views, and we shall aim only at a general examination of them. It is not very apparent what objection of weight, exists to the introducing the records of the action in replevin in evidence, in the present cause. On the contrary, this would seem to be necessary, of course. In any supposable case in which an action would lie upon a replevin bond, for the non-return of the property as awarded, how is the subject matter of the suit to be brought to view, and to be shown, but by the papers of the cause — the records themselves. Each paper does not contain a detail of all the others, so as to stand alone and independent, without reference to others. The bond, for instance, does not contain a long catalogue of items of personal property replevied, but the papers making the record, constitute the action.
In the present cause, the defendants deny the execution of a bond; deny that there is one; deny a judgment of return; and that the replevin plaintiff obtained the
The second assignment relates to the sustaining plaintiff’s demurrer to defendants answer. As the defendants amended, proceeded with the cause, and went to trial upon the amended answer, they waived their objection to the ruling. Besides this, their answer seems to have reached behind the judgment in replevin, and to have touched upon the merits of the former action, and thus to have been liable to the demurrer.
The fourth assignment is to the giving each and all of five instructions, requested by the plaintiff, and the substance of which was : 1. That the records of the court show that return of the property was awarded in the former action; 2. That such award of return was still in force, and that unless defendants have returned the property, or paid the value, they are liable; 3. That the petition of plaintiff in the former suit, and the return of the sheriff, were proper evidence, and the latter conclusive of the facts therein stated, unless contradicted; 4. That if the plaintiff proves that his property was replevied by Hart, and delivered to him, the defendants must prove4he property returned, or paid for, or otherwise the verdict would be against them; and, 5. That, in order to make a valid replevy, it was not necessary that the sheriff should actually take the property off from the premises of the defendant in replevin; but
The necessity of some of these instructions is not very apparent, but they are not therefore erroneous. There was no impropriety in the court construing its prior records, and stating their legal effect, as requested.in the first instruction, although they were to be offered in evidence to the jury. There is nothing showing that they were not so made evidence ; and the necessary presumption is, that they were. It was also competent for the court to instruct that the order of return remained in force, and the defendants liable on their bond, unless the obligation had been discharged by a return, or by compensation ; although the proposition would have been more complete, had the court added a reference to any other method of discharge, such as a release, or accord and satisfaction. But such an instruction would not be understood as limiting a discharge to the exact modes there named.
The third instruction is involved in the matter under the first and third assignments of error, relating to the admission of the petition, writ and return in evidence; the fourth is of similar substance to the second, and requires no other comment.
The fifth instruction is correct as a proposition. There is nothing shown in the case to make it applicable, but this court will assume it to have been pertinent, where nothing is shown to make the contrary appear. But it is objected to, as being erroneous, without a fact or any testimony stated, manifesting it as erroneous. If there was anything rendering it improper to be given, or erroneous as law, when applied to this cause, the testimony and the facts should have been set forth so far as to show this. We will venture a farther remark upon this instruction. A part of the defendants’ answer alleges that Hart “ did not obtain the property on the writ of replevin, and that the property has been in the possession of the plaintiff, and de
The fifth, and last assignment of error, is, that the court rendered judgment for a greater amount of damages than was claimed. There is no good foundation for this assignment. The plaintiff claims seven hundred dollars — the penal sum in the bond — both in the commencement and the close of his petition. In the course of his statement of his cause of action, and the breach of the condition of the bond, he alleges that the defendants (plaintiffs in the former action), did not return the property, but converted it to their own use, by means of which he has been damaged in the sum of two hundred and fifty dollars; but the petition proceeds to state further, and to claim the sum first named, that is, the penalty of the bond. In the manner in which the petition is constructed, this allegation of
There being found no error in the rendition of the judgment, and in the proceedings, the same are affirmed.