Duke v. Vincent

29 Iowa 308

• Court: Supreme Court of Iowa
• Decided: June 15, 1870
• Status: Published

Opinion

Cole, Ch. J.

The first error assigned is in overruling defendant’s demurrer to plaintiff’s petition. The answer' is, that the record before us does not contain any demurrer, hence no error appears.

It is next urged that the court erred in refusing to subrogate defendants to the rights of. plaintiff or both mortgages, upon their paying her the amount due. The answer is, that there is no finding of fact by the court of any offer to pay plaintiff the amount due her, or of any fact entitling defendant to such subrogation.

Again, it is assigned as error that the court rendered judgment against Vincent, the sheriff, when it appears that he had gone out of office and his successor sold the goods and received the money. The answer is, that the action is for a trespass, and the wrong-doer cannot avoid liability by handing the fruits of his trespass or wrong over to another.

Finally, it is said to be error to render judgment for the plaintiff for the amount the goods sold for, after paying the Betzer mortgage, since no such judgment was asked for. The answer is, that plaintiff asked for all, but the defense showed that the Betzer mortgage was first to be paid. We see no error to defendant’s prejudice.

Affirmed.