Hoover v. Rhoads

6 Iowa 505, 1858 Iowa Sup. LEXIS 142

• Court: Supreme Court of Iowa
• Decided: October 13, 1858
• Status: Published

Opinion

Stockton, J.

— I. The defendant moved to dismiss the petition, because, as he alleged, it was not sworn to as required by law. At the time the motion was made, it appears that the justice had omitted the words “sworn to” in the jurat; and that the same was signed by the plaintiffs as “ G-. W. & B. Hoover.” The justice permitted the affidavit to the petition to be amended, by adding the words “ sworn to;” and this embraces the first and second errors assigned by the defendant, to the proceedings before the justice. We think there was no error in the amendment allowed by the justice, and in his then overruling the motion made by defendant. Such amendment is allowed by the Code, section 2511. It was no objection that the affidavit was signed “ G. W. & B. Hoover ” — and that it was sworn to by both plaintiffs.

II. The justice of the peace rendered judgment against the defendant for five dollars damages, and for costs. It is urged by the defendant, that as the plaintiff did not claim either damages or costs in the original petition, and as the officer delivered the property to them upon the writ of replevin, they were not entitled to a judgment against him, for either damages or costs. We think there was no error in the judgment of the justice. Whether the property sought to be replevied by him, was obtained or not, he was entitled to recover all the damages he had sustained by the illegal detention.. Damages were claimed by the notice served on defendant — and the transcript of the justice shows that damages were claimed. The costs followed the judgment, as a matter of course.

The judgment of the district court will be reversed, and judgment rendered affirming the judgment of the justice, with costs.