Peterson v. Kissell

Laud, J.

The record discloses that an action in replevin, begun by plaintiff, was dismissed because of failure to comply with an order of court to make their petition more specific. Such petition alleged that plaintiff was absolute owner of cattle valued at $165, and that, according to his belief, defendant held them in distraint; they having broken into his premises. No answer appears to have been filed, nor does defendant appear ever to have challenged plaintiff’s title to the cattle. • Nevertheless, the district court upon dismissal of the petition entered judgment *519 in favor of the defendant for the value of said cattle as alleged in the petition. The plaintiff in this suit prays that the amount of damages be determined, and that upon their payment with costs of that action the judgment for the value of the cattle be canceled, while defendant contends that the entry of judgment for the value of the cattle was but an error or irregularity in that action, and must have been corrected on appeal, and that for this reason the court in this suit is without authority to grant the relief prayed.

1. Pleading:amendment: comply with order of court: íefaStnt for If the court in entering the judgment was without jurisdiction, there was no error. Leonard v. Insurance Co., 101 Iowa, 482 . It does not follow, however, that, if the entry was within the court’s authority, the present suit may not be maintained, for the remedy sought is not to annul or modify . ° J judgment in the replevin action, but to adjudicate the title or interest of the respective parties in and to the chattels in controversy. Such title or interest has not been ascertained in the former suit. Therein the court rightly exacted prompt obedience to its orders (Becker v. Becker, 50 Iowa, 139 ), and it did not err in defaulting plaintiff for failing to make the petition more specific within the time designated. Section 3788 of the Code declares that “if a party fails to file or amend his pleading ... by the time fixed by the court . . . judgment by default may be rendered against him on demand ef the adverse party, made before such pleading is filed.” A default is the failure to take the step required in the progress of an action, and a judgment by default is a judgment against the party who has failed to take such step. Such a judgment ordinarily is interlocutory, and not(i final in form, for upon entry something more is essential to the disposition of the cause. Such a judgment in a replevin suit precludes the party at fault from proving the allegations of his petition, and *520 this was the effect of the court’s order of dismissal. The property having been wrested from defendant’s possession by the extraordinary process of the court, restoration thereof necessarily followed in the absence of pleadings in order to put the parties in statu quo. To this was added by the judgment of default an adjudication that defendant was entitled to possession. And judgment for the return of the cattle or their value was proper. Manix v. Howard, 82 N. C. 125 ; Collamar v. Page, 35 Vt. 387 .

2. Replevin: pleadings: dismissal of action for default: extent of judgment. But, in the absence of any assertion of title or interest in or lien on the property by defendant in an appropriate pleading, nothing of the kind was before the court. How could it know or determine the nature or extent of defendant’s interest in the absence of any pleading? Possibly all required was a demand to terminate his right of possession, or he may have held under a chattel mortgage or an adjuster’s lien or in distraint for damages. Shall the court pass upon every possible right or claim of' defendant without these being appropriately pleaded? We think not. Had these been set up by way of answer, issue might have been joined thereon and his claimed rights adjudicated. Crist v. Francis, 50 Iowa, 257 . But the defendant’s claim to or .interest in the property was not put in issue. Apparently he was content , to have the possession of the property or value thereof restored, and leave other issues for future adjustment. That such a remedy was available to him appears from Funk v. Israel, 5 Iowa, 438 , in which certain intoxicating liquors seized under a search warrant were replevined from the officer who had served the warrant. The court approved the ruling of the trial court in having dismissed the petition on the ground that the action could not be maintained and entering judgment in favor of the officer for the possession or value of the liquors. But the title to the liquors was not adjudicated, and manifestly, upon a subsequent' judg *521 ment in the search warrant proceedings being entered deciding these not to be contraband, but in the legal custody of plaintiff, the judgment in favor of the constable would be no bar to the assertion of title thereto.

3. Same: dis-™¿nSafo?fdeC" mattersVcon-eluded thereby. As said, this defendant might have had a trial on the merits in the replevin suit, but he did not avail himself of that right, and for this reason that judgment is not an obstacle to the present inquiry. Be t tinson v. Lowery, 86 Me. 218 ( 29 Atl. 1003 ); Hanchett v. Gardner, 138 Ill. 571 ( 28 N. E. 788 ); Hall v. Smith, 10 Iowa, 45 ; Manning v. Manning, 26 Kan. 98 . Had the court entered judgment restoring possession of the cattle to defendant, this would determine no more than the right of possession, and the latter must have enforced his lien for damages as provided by law. The circumstance that judgment for their value was entered in lieu of the return of the cattle-does not change the situation. The plaintiff was furnished process which required the officer to take the specified property from the defendant, notwithstanding he might have been the rightful owner. To prevent the writ from working any wrong, the statute exacts before its issue the execution of a bond with sufficient surety in favor of defendant, conditioned, among other things, for the payment of any judgment which may be recovered against him. This security virtually takes the place of the property replevined, and, as the plaintiff asked what is in the nature of a judgment in rem, the res, so far as the defendant is concerned, is after the replevy represented by the replevin bond. Walko v. Walko, 64 Conn. 74 ( 29 Atl. 243 ). For this reason, the statute allows the defendant to have judgment for the restoration of possession or for the value of the property against plaintiff and the sureties on the bond. Sections 4176, 4178, Code. Where, as in 'the case at bar, the property has been distrained' for damages done to crops and defendant asserts no other claim thereto, *522 such! a judgment furnishes quite as available security as the possession of the animals against which to enforce his lien. Though such relief was available without pleading, it did no more than put the parties in statu quo with an adjudication of defendant’s right of possession. * The better practice is 'to require the defendant in such a case to allege whatever title or interest he may claim and settle the controversy in the replevin suit, but, when this is not done, neither party is barred from asserting their rights, other than that of plaintiff to possession, in another action. — Affirmed.