Reisner v. Currier ( 1882 )

Seevers, Oh. J.

1. REFLIVEN : demurrer confessed: order of court. It is claimed when the demurrer was confessed, and no amendment to the petition filed, the defend-entitled to judgment as upon a dismissal of the action for a return of the property Qr f01. ^16 vaque 0f the defendant’s interest. Code, § 3239; Marshall v. Bunker, 40 Iowa, 121. No such judgment was rendered, but the plaintiffs were required to pay to the defendant the value of such interest and all costs. The money so paid to be held by the defendant in place of the property in controversy. The question is whether the defendant has been prejudiced by this ruling. It appears to us he obtained all he was entitled to. If a return had been awarded, all the defendant could have done was to sell .the property, or a sufficient amount thereof, to satisfy the execution and costs. It is true, the ownex’ship of the px*operty has not been determined, but the value of the defendant’s interest in his hands stands in the place of the propex’ty, and who is exxtitled thereto remains to be detexmined. The defendant has no interest in or right to the property except in his official capacity under and by virtue of the levy. Had a return been awarded or judgment for the value of the defendant’s interest been rendered, the question as to the ownership of the property would not in fact have been determined. The effect, however’, in such case, would have been to estop the plaixxtiffs from thereafter contesting such question. This result would be caused by the 'failxxx’e of the plaintiffs to give notice of their ownership, and not because they were not ixx truth and and ixx fact the owners of the property iix controvex*sy. The failure to give the notice required by statute, without doubt, was an ovex-sight, and the defendant should not be pexunitted to reap a sxxbstantial advantage therefrom, unless he has been, in fact, prejudiced thereby.

If, upon confessing the demurrer, the defendant had given the requisite notice and filed an amended petition, so alleging, and paid all costs incurred in the actioxx up to that time, we see no reason why the action might xxot have proceeded axxd the right of the parties to the property been determined. If the course suggested had been adopted the case in pxúnciple, as to the x’iglxt under the cix-cumstances to axnend, would have been analagous to Seevers v. Hamilton, 11 Iowa, 66. What was done 'is lull as favorable to the defendant as if the course indicated had been adopted.

But it is suggested the defendant may have had other rights to the pi’operty or other executions that had been levied thereon, and that there was no issue, nor could any have been formed under which such questions could have been determined. The record fails to disclose the defendant claimed any other interest in or right to the property than that founded on the levy of the Lawton & Post execution. Under the circumstances, we think the defendant should have in some manner indicated to the court • he claimed the property because of some other right thereto, if any such he had. When the result is a reversal, we cannot presume a state of facts not shown by the record. Besides this, there is matter appearing in the record which affirmatively shows the defendant had no other interest than that under the levy of the Lawton & Post execution, which, in the absence of any showing to the contrary, is entitled to consideration, and that is the receipt signed by the defendant Klotzbach. The right of the defendant to the property and the-extent of his interest therein is stated in the receipt. Klotzbach, as against the defendant, could have retained the property upon paying the amount of the Lawton & Post execution and costs.

Affirmed.