109 Iowa 286 | Iowa | 1899
Tbe material facts shown by the count demurred to are substantially as follows: In May, 1896, Hortense Ward exchanged with tbe plaintiff a mare for an animal then owned by him. By tbe terms of tbe exchange, Hortense Ward was to retain and care for the mare for tbe plaintiff until tbe 1st day of June. Before tbe mare was delivered to tbe plaintiff, on the 27th day of May, 1896, tbe defendant Round commenced an action in justice’s court against Hortense Ward and Charles Osgood to obtain possession of tbe mare. To secure her immediate delivery to him, Round filed tbe bond in suit, with tbe defendant Bancroft
I. The plaintiff was the owner of the mare, and was entitled to possess her, when'-the action in replevin was tried in justice’s court. Therefore he was entitled to intervene in that action to protect his rights.. Code 1873, section 3228. From the relief granted, we must presume that he asserted his
II. The proceeding of the plaintiff was in effect an action for the recovery of specific personal property, within the meaning of section 3225 of the Code of 1873, and was governed, so far as applicable, by that and subsequent sections. Subdivision 6 of that section required him to> state the amount of damages, if any, which he ought to recover for the detention of the property; and section 3241 gave him an option to- have execution for the return of the property or for its value. He does not appear to have alleged or demanded judgment for damages, nor to have asked a judgment for the value of the property. It was the policy of the statute to require to be adjudicated in that action the inter-vener’s right to the possession of the mare, the damages he was entitled to on account of her wrongful detention, and to give him, if he elected to-take it, judgment for the value of the property, if he preferred that to the property, — not to have his rights tried piecemeal in distinct actions. By failing to demand relief to which he may have been entitled in the action in replevin, he waived his right to recover it in .-another action. We conclude that the demurrer was properly •sustained, for the reasons stated, and find it unnecessary to •consider other questions discussed in argument. The judgment of the district court is affiemed.