79 Iowa 524 | Iowa | 1890
I. The petition alleges that the bond in suit was given in an action of replevin prosecuted in the state of Colorado; that plaintiff, who was plaintiff in that action, recovered a judgment therein against the defendants in the action for the possession of the property, and also a judgment for the delivery or return of the property whenever a writ was issued for its return ; the property having been restored to defendants, after service of the writ of replevin, upon the execution of a bond for its return. The defendant, in his answer, denies all the allegations of the -petition, and pleads specially as defenses, among other matters, that the property at all times since the execution of the bond has been in the place and in the condition it was at the time, and that plaintiff could have taken at any time full possession thereof ; that the property, being pumping machinery used in a mine, has been in position and condition to be used or operated, and that it may be removed to any place to which the plaintiff may desire to remove it; that defendants in the replevin action, the principals in the bond sued on, have at all times been ready and willing to perform the conditions of the bond, and have offered and attempted so to do, and have tendered the property to the sheriff and the plaintiff. Upon the issues found upon these pleadings, the cause was submitted to the jury. There was evidence tending to show the condition of the property when the bond in suit was given; that it was set up for use in a mine; that it remained in that condition until after the writ for the return of the property was issued, which was not served for the reason set out- in the return of the sheriff, which is in the following language: “ I do hereby certify that I have demanded of George W. France, one of the within named defendants, the property as described in this, the within writ, also the sum of §152.40, for costs, as I am therein commanded. The said George W. France proposed to go up to the Coon Yalley lode mining claim, where he claimed said property was, in the working shaft of said Coon Yalley
II. The court below, it will be noticed, instructed the jury that upon the facts proved they should find
III. They are erroneous for another reason. The evidence upon which rested a determination of the questions as to the place at which the delivery should be made, and the manner thereof, and whether there was a tender, should have been submitted to the jury for findings-of the facts. But the court assumes to discharge the functions of the jury, and find the facts. The issues involving the facts should have been submitted to the jury, under proper instructions.
Other questions discussed by counsel need not be determined. For the errors pointed out, the judgment of the district court is Reversed. .