Parker v. Norris

9 N.W. 225, 56 Iowa 295

• Court: Supreme Court of Iowa
• Decided: June 13, 1881
• Status: Published

Opinion

Adams, Cu. J.

i venue- acpieviiffevidenceThe action was brought against Frank Bailey, who afterwards died. G-. W. Norris was substituted as administrator. The application for a change fhe place of trial was based upon the alleged ground that Bailey was a resident of Page county, and that all the property taken under the writ from his possession was at the time of the commencement of the action, either in that county or in Montgomery county. The appli- ' cation was resisted upon the ground that it was not true as claimed that Bailey was a resident of Page county, and not true as claimed that all the property taken from his possession was at the time of the commencement of the action either in that county or Montgomery county. But on the other hand it was claimed that Bailey was a resident of Pottawattamie county, and a part of the property taken from his possession was at the time of the commencement of the action in that county. The application was further resisted upon the ground that the plaintiffs petition showed that the property was wrongfully removed from Pottawattamie county.

Upon the hearing upon the application affidavits were introduced upon both sides, and witnesses were examined.

It appeared that a writ of replevin was issued to the sheriff of Pottawattamie county. The property taken by him consisted of a bridle and a mare. All the other property was taken in Page county, and under a writ issued to the sheriff" of Page county. The defendant contends that the bridle was never in Bailey’s possession but in the possession of the plaintiff, and that while the mare was at one time in Bailey’s possession, it was, while in his possession, in Page county, and before it was taken by the sheriff of Pottawattamie county it had passed out of Bailey’s possession into plaintiffs possession, and was in the plaintiff’s possession when taken under the writ. The defendant offered evidence of these facts, but the plaintiff objected and the court sustained the objection, to which the defendant excepted.

An action in replevin must be brought in the county where one of the defendants resides or some portion of the property is situated. Hibbs v. Dunham, 54 Iowa, 559. Section 3230 of the Code, which provides that where the petition shows that the property has been wrongfully removed into another county from the one in which the action is commenced an order may issue and be served in any county where the property may be found, was not designed to provide in what county the action may be brought. Hibbs v. Dunham, above cited. To justify the court below, then, in overruling the motion for change of place of trial, it must have been found either that Bailey was a resident of Pottawattamie county or that some portion of the property was situated in that county. The bridle it appears was in that county. But if the fact is as the defendant claims, that the bridle was never in Bailey’s possession, but was in the plaintiffs possession, it was not tbe subject of replevin, and tbe taking of it by tbe officer in Pottawattamie county could not bave tbe effect to give tbe plaintiff tbe right to bring tbe action in that county. Nor could such right be acquired by tbe taking of tbe mare in that county, if at’ tbe time tbe action was commenced it was in Page county, and before, it was taken it bad passed into tbe plaintiff’s possession. It appears to us that tbe defendant was entitled to show these facts as claimed by him in regard to tbe bridle and tbe mare. It - is true tbe court may bave come to tbe conclusion that Bailey was a resident of Pottawattamie county and overruled tbe motion upon that ground alone.

If tbe court bad so specially found we should not deem it our province to disturb the finding, because tbe evidence is conflicting. But we are by no means' certain that tbe ruling was placed upon this ground. We cannot say, therefore, that tbe defendant was not prejudiced by tbe exclusion of tbe evidence in question.

Bevebsed.