Turner v. Younker , 76 Iowa 258 ( 1888 )

Reed, J.

1. amount • dis OTetion ¿f — I. Plaintiff, being a non-resident of the state, was required to give security for costs. By agreement of parties he was permitted to ^eP0S1^ a sum °f money with the clerk in lieu of a bond. Afterwards defendants moved the district court to require him to give additional security, alleging that the amount of money deposited was inadequate security for the costs likely to accrue in the case. The court overruled the motion, and that ruling is assigned as error. The question raised by the motion was addressed largely to the discretion of the court, and we deem it sufficient to say that it does not appear to us that there was any abuse of that discretion in the action complained of.

2. *'defective : effectíation: II. The petition purports to have been sworn to before a justice of the peace. Defendants moved the court to instruct the jury that, as there was no evidence tending to show that the pleading was properly verified, their verdict should be for them. They also moved in arrest of judgment, alleging that the person before whom the petition purported to be verified was not a justice of the peace. Both motions were overruled. The rulings are correct. A question as to the sufficiency of the verification of a pleading cannot be made upon the trial. By answering and going to trial, defendants waived the defect, if one existed ; and the fact alleged does not afford ground for a motion in arrest. Where the averments of fact in the petition do not entitle the plaintiff to any relief, advantage may be taken of the defect by a motion of that character; but that is the only ground for such motion recognized by the statute. Code, secs. 2650, 2842.

3. notTio6BofNT: thMrsparty7: vice. v III. On the day following that on which the property was seized, plaintiff caused a notice in writing to be prepared, in which his ownership of the property, and the other facts required by ■ the statute, were alleged. This notice was verified, as required by law, and it was left at the office of defendant Hardin, to whom it was directed, and it afterwards came into his hands. He thereupon demanded of his co-defendant, Younker, an indemnifying bond, which was given. On the trial, defendants objected to the admission of the notice in evidence, on the ground that it had not been properly served ; but the objection was overruled. The statute does not prescribe the manner in which the notice shall be served. It provides simply that if, after the levy, the officer shall receive a notice in writing that some person other than the one against whom the writ runs claims the property, he may release it unless a bond is given. Ch. 45, Laws 20th Gen. Assem. The object of the statute is to afford the officer indemnity against liability for the levy when the title and ownership of the property which he is required to seize is in dispute. That object is accomplished by the mere delivery of the notice to him. The manner of the delivery is immaferial; the only essential being that the officer received the notice.

4' VNfffui property: IV. The court instructed the jury that if plaintiff was entitled to the possession of the property the measure of his damages for its detention under the levy would be the value of the use of the property during that time, and error is assigned on that instruction. Appellant relies on Hasted v. Dodge, 35 N. W. Rep. 462. ^* But on rehearing, that case was overruled, and Cook v. Hamilton, 67 Iowa, 394, was adhered to. The instruction is in accord with the holding in the latter case.

5' ñSid?cwiiat sufficient. V. On the issue of fraud the court gave the following instruction: “The burden of proving fraud is upon the party alleging it. Fraud is not to be presumed without proof. Yet fraud, p[ke any other fact, may he proved by proving circumstances from which the inference of fraud is natural and irresistible ; and if such' circumstances are proven, and they are of such a character as to produce in the mind of the jury a conviction of the fact of fraud, then it must be considered that fraud is proven.” The doctrine of this instruction is that the circumstances relied on to establish that the transaction was fraudulent must lead irresistibly to that conclusion or they are not sufficient. We think it is erroneous. The true doctrine undoubtedly is that the circumstances relied on must lead.naturally and fairly to the conclusion sought to be established, and must be inconsistent with any other reasonable or probable theory. But the instruction goes much further than that. It, in effect, requires proof to a moral certainty. In civil actions the parties are required to establish their allegations by a preponderance of testimony only. Under an issue like that in question a prepond erance is attained when the circumstances proven overcome the presumption of honesty which the law raises with reference to the transaction, and lead fairly to the conclusion that it was entered into with a dishonest or fraudulent design. Por this error the judgment must be

Reversed.'