Sigler v. Murphy , 107 Iowa 128 ( 1898 )

Ladd, J.

1 The notes of the official stenographer, who took down all the evidence in shorthand, were duly certified by the trial judge, and filed in apt time. No certificate of the reporter was attached. That this constituted a sufficient bill of exceptions appears from Hurlburt v. Fyock, 73 Iowa, 479; Ross v. Loomis, 64 Iowa, 433, and Fleming v. Stearns, 79 Iowa, 258. But see Code, section 3675.

2 II. The petition in the suit brought by Mrs. Murphy to enjoin Sigler from going on or interfering with this land was excluded from the evidence on the objection of the defendant, though the decree entered therein was received. It is not set out in the abstract, but it is there merely stated, that it settled the title to the land in the defendant. The action was begun October 8, 1894, and the decree is presumed to relate back to that time, but not further. Status once established will be presumed to continue until shown to have changed, but there is no presumption of its existence prior to the time proven. Lawson on Presumptive Evidence 581. This decree was the only evidence of title or ownership in the defendant introduced. As to who was the owner prior to that time the record is silent, except in so far as it shows that from the twenty-fourth day of April, 1894, till the levy of the writ of attachment, the plaintiff was in the actual and peacable possession of the land. Whether he was there of right or as a trespasser does not appear. That as against a stranger, in the absence of other evidence of ownership, prior actual possession will be protected, and purely possessory rights guarded, is too well settled to require the citation of authorities. See cases collected in 26 Am. & Eng. Enc. Law, 380 et seq., and note to Orser v. Storms, 18 Am. Dec. 546. The crops, then, appear to have belonged to the plaintiff, and the defendant to have had no interest therein, either as landlord or as owner of the soil.

3 III. The actual damages suffered by reason of the levy of a landlord’s writ of attachment sued out when nothing is owing as rent may be recovered. Harger v. Spofford, 46 Iowa, 11. If the property levied on is permitted to he wasted or injured, under the doctrine of Baul v. Tharp, 83 Iowa, 672, recovery may be had of the party suing out the writ. This is on the theory that the sheriff in such a case acts as his agent in what he does. Here the injury is alleged to have been done by the party suing out the writ, and there is no reason why a direct action may not be maintained. True, the sheriff was enjoined at the suit of the plaintiff from selling the property as perishable, but this did not relieve him from giving it proper care.

IV. It is suggested that, because the herd law was not shown to have been in force, the defendant was not required to restrain her stock. In other words, she might cause the crop to be levied ou and held by the sheriff while she appropriated it by feeding it to her cattle and horses, under the pretense of letting them run at large. She cannot so shield herself from the consequences of any negligence on the part of the sheriff or herself through which the attached property was injured. The corn placed in the crib was retained by the defendant. Whether that in the field was destroyed by her stock was in dispute. The evidence on the part of the plaintiff tended to show that there were about two thousand bushels when levied on, and only two hundred and twenty-five bushels when husked; that its market value was forty-five cents per bushel, and the cost of marketing it five cents per bushel. This evidence furnished a basis for the •estimation of damages.

Y. The errors in the record appear to have arisen from the assumption that-the defendant had been shown to be the •owner of the land during the season of 1894, and that the plaintiff, in what he did, -was a mere trespasser. As we have seen, the evidence did not warrant these conclusions — • —Reversed.