49 Iowa 645 | Iowa | 1878
No exceptions were taken to the instructions, and no errors assigned thereon. The appellant merely claims .that the verdict under the instructions is not supported by the evidence.
The jury must have found that the wagon was reclaimed before levy. Was this finding wholly without support? The undisputed evidence is that the wagon was standing near Allen’s stable. The plaintiff hitched a pair of mules to it and drew it out as far as into the street, and was about to take it away, when he was stopped by the defendant. It appears to us that the plaintiff had reclaimed the wagon. Whether a valid levy had been made prior to that time is a question of more doubt. The defendant testifies that a levy had been made, and that he had so told the plaintiff before the plaintiff moved the wagon. But the defendant had not moved the wagon, and at the time the plaintiff hitched to it and drew it into the street the defendant had gone away. To use his own expression, he “had gone up town.”
The court instructed the jury upon this point as follows :
“The simply noting the levy on the writ, or taking an inventory of the property by the officer, if after doing this he leaves it where he finds it, would not constitute a good levy. But if, ■while the officer was there making a levy or taking an inventory, the plaintiff came there and attempted to take the wagon, and was there informed by the officer that he had levied upon the wagon, the plaintiff could not, if the officer happened to step off for a few minutes from the wagon, take it into possession. He could in that way acquire no right as against the officer.”
The defendant testifies that at the time he made the levy no one was present; that the plaintiff came afterward; that he
AFFIRMED.