Parsons v. Thomas

62 Iowa 319 | Iowa | 1883

Day, Ch. J.

I. The petition does not allege that, before commencing the action, the plaintiff served upon the officer 1. execution: notice to sheriff of ownership: statute construed, a notice in writing of his claim to the property. The defendant demurred to the petition upon this ground, and the court overruled the demurrer. The defendant thereupon tiled an answer, alleging that the plaintiff never at any time gave him written notice of his claim to the property, or that he claimed it as exempt, prior to the commencement of this action. On motion of plaintiff, this averment was stricken from the answer as irrelevant and immaterial, and constituting no defense, Upon the trial the defendant was introduced as a witness, and was asked to state if, prior to the bringing of this suit, plaintiff had notified him in writing that he claimed this team as exempt, or that he claimed it in any way. The question was objected to, and the objection was sustained. The defendant also requested the court to instruct- the jury that, if plaintiff never notified the sheriff or his deputy, in writing, that he claimed the property as exempt from execution before the beginning of this suit, they should find for defendant. The court refused to give this instruction. Appellant complains of these several rulings, and insists that the defendant was entitled to notice of the plaintiff’s claim to the property before the commencement of the suit, under section 3055 of the Code. Section 3055 of the-Code applies to a case where some other person notifies the sheriff that- the property belongs to him, and not to a case where the execution defendant claims that the property is exempt from execution. See McCoy v. Cornell, 40 Iowa, 457.

II. It is insisted that the court erred in not admitting evidence of what the plaintiff’s son, twenty years of age, 2. evidence : actsUanardee^ larations. sa^’ a^er ^e officer had seen the horses in the stable and concluded to levy, and after he had g0ne to the house to make his return upon the execution. The levy was made in Adams county when the plaintiff was in Fairfield. It does not appear that the plaintiff’s son had any authority to bind him by his declarations. The court also rejected evidence as to who was in possession of the teams when the officer went to make the levy. It is claimed that this evidence was offered to support the allegation of the answer that the plaintiff voluntarily turned the property over to the defendant. But, as the plaintiff was not present, the proffered testimony would not tend to establish this allegation of the answer, unless it was proved that tlie person in possession was authorized to turn out tbe property. No such testimony was proposed. There was no error in rejecting the evidence offered.

III. It is insisted that the court erred in sustaining an objection to a question ashed Harry Parsons, in reference to what teams his father had in the spring of 1882. The levy was made on the seventeenth of August. It is immaterial what teams the plaintiff had in the spring of that year.

TY. The appellant insists that the court erred in refusing the first and second instructions ashed by the defendant. 3. es-str-üc-5t?onS¿otepe" required. These instructions were fully covered by the instructions given by the court on its own motion, an¿ wkich. correctly present the law of the case. The verdict is not unsupported by the evidence.

Affirmed.