Allen v. Platt

Granger, J. The errors assigned are as follows: “ (1) The court erred in holding that the plaintiff has such an interest in the cause of action that he may maintain this action. (2) The court erred in holding that there is shown to be a good and valid consideration passing between the parties, sufficient to make the contract upon which this action is brought a valid contract. (3) The court erred in holding that there was sufficient evidence to support the finding of the court.” i pleadingdemun-er-61’ effeot I. The first division of appellant’s argument deals entirely with matters which appear on the face of the petition. The argument is introduced with these statements: “Plaintiff cannot maintain this action against the defendant. The petition, does not contain allegations sufficient to constitute a cause-of action in his favor.” With the state of the record, we do not consider these questions. They go only to the sufficiency of the pleading. To the petition a demurrer was presented, which was overruled, and, without even excepting to the ruling, the defendant answered. This was a waiver of the objection. The demurrer presented a law issue as to the sufficiency of the petition. The judgment of the court on that issue was favorable to the petition, and that judgment stands conclusive until in some manner set aside, under the [116] provisions of the statute. This rule has support in very many cases, and they are to be found in the note to section 2651 of the Code, in both McClain’s and Miller’s Annotated Editions of 1888. The defendant, by taking issue on the allegations of the petition, thereby admits that they constitute a cause of action. Frentress v. Mobley, 10 Iowa, 450. Hence, after the answer was filed in this case, the trial proceeded upon the theory that the petition stated a cause of action, and it must be so treated on this appeal. ' considera-' by beneficiair‘ II. The second assignment presents the question that the contract has no consideration to support it, the precise point relied on being, as we understand, that there was no consideration as between the parties to the suit. In the first division of this opinion it is held, under the state of the pleadings, that the petition shows a cause of action in favor of plaintiff. If, therefore, the contract is supported by any consideration, it must be one on which plaintiff can maintain the action. The contract is in writing, signed by the party, and imports a consideration. Code, sec. 2113. But it is said that the reply admits a want of consideration, and hence the fact is established by the pleadings. The reply does not in any sense indicate to us such a. meaning or purpose, but, on the contrary, clearly puts in issue the matters pleaded, both by .way of defense and counterclaim. In this connection appellant seems to regard the plaintiff as not a proper party to the suit, because not substituted by the court under the provisions of Code, section 2574, which has reference to actions against a sheriff or officer for the recovery of property taken on attachment or execution, and permits the party in whose favor the process issued to be substituted as defendant. This is no such a proceeding. It is an action by the party in whose favor the process issued, and not against an officer, or for the recovery of property. It is true, it seeks to recover a part of the proceeds of certain property, but the right of recovery is based on an instrument in writing averring a breach [117] of the conditions thereof. Section 2552 of the Code is in these words: “When a bond or other instrument given to the state or county or other municipal corporation, or to any officer or person, is intended for the security of the public generally, or of particular individuals, suit may be brought thereon in the name of any person intended to be thus sued who has sustained an injury in consequence of a breach thereof.” That the instrument in suit was intended as security for the plaintiff, in whose interest the execution issued and the property was seized, hardly admits of a doubt. The fact is apparent on the face of the instrument. That it was not a statutory bond or obligation makes no difference. Garretson v. Reeder, 23 Iowa, 21; Sheppard v. Collins, 12 Iowa, 570. III.' The remaining assignment is as to the sufficiency of the evidence to sustain the finding of the court. It is said that there is no material conflict in the evidence as to ownership of the property, and that it belonged to the defendant. We do not concur in this view. The evidence is decidedly conflicting as to the ownership, and the court below has found for the plaintiff. Under a well-recognized rule, we cannot interfere. Aeeijkmed