Seippel v. Blake

Rothrock, J. — The property in controversy is a horse ferry-boat, which runs between the village of Clayton, on the Mississippi river, and a landing across the river, on the opposite shore. The plaintiff ’ s claim to the boat is based upon two chattel mortgages. The defendant denied the averments of the petition, and set up as a further defense that the owner of the boat was indebted to the defendant Elake for wages earned in operating the boat, and that he caused the same to be seized upon a warrant under the statute, and that defendant Morrison, who is a constable, made the seizure, and that the boat was lawfully in his possession when this action was commenced; and judgment was asked for the return of the boat, and that, in default of a return thereof, the amount of the claim for wages be declared a lien, and that plaintiff be required to pay the same, with costs. A demurrer to this division of the answer was overruled. The record shows that the plaintiff excepted to the ruling. What further was done in the action is not shown by the record. Counsel for defendants makes the point that the appeal cannot be entertained, because it does not appear that the plaintiff had any right to appeal. In Wilcox v. McCune, 21 Iowa, 294, where a demurrer to an answer was overruled, it was held that, if the plaintiff elects to stand on the ruling, he must so state, and have the fact shown of [144] ■record, and that a mere exception to the ruling is not sufficient to give the right of appeal. The ruling in that case appears to be decisive of this, and the appeal must be dismissed, upon the ground that no right of appeal is shown in the record. [Filed, May 17, 1890.] Dismissed.