47 Iowa 400 | Iowa | 1877
I. It is assigned for error that the court erred in overruling the motion for a new trial. Such motion embraced thirty-two causes, and we are satisfied it cannot be claimed that all of them are well taken. Some of the causes embraced in the motion are insisted on by counsel in his argument, and are not otherwise assigned as error. Such an assign
II. It is also assigned that the court erred in admitting certain parol evidence to contradict the notes and contract. But we fail to find that such evidence was objected to when introduced.
Y. It became a material question on the trial whether there had been a valid levy of the attachment on certain beer in'tubs or casks. The beer was in no wise disturbed by the sheriff, and the plaintiff’s evidence tended to show that it was taken possession of by the sheriff; that he claimed and exercised dominion over it, and that he left the same in charge of the (plaintiff) defendant in attachment. To make a valid levy,
We incline to think the fifth instruction given the jury is correct as an abstract proposition, but as applied to the facts in this case, it is, we think, incorrect. The defendant’s evidence tended to show that the sheriff left the beer in possession of the defendant in attachment, with directions and authority to use the beer as he saw fit, by selling it or otherwise, but that he was to keep the “complement” or quantity good. If this evidence was believed by the jury, then we strongly incline to think there was no valid levy even between the parties. The instructions given failed to submit this view of the case to the jury. We think this should have been done. We have said this much on this point with a view to a re-trial, and for the purpose of calling attention of counsel thereto.
In view of the fact this question has not been fully argued, and but few authorities cited, we do not desire to be absolutely bound by what has been said.
Reversed.