McMeekin v. Worcester

Bjnne, J. 2 I. It is said that the appellee waived his claim to a common law lien on the sash by claiming a mechanic’s lien for the same debt, and it is insisted that the two claims are inconsistent. Some claim is also made that appellee never was entitled to a common law lien. • As to this, it may oe said there can be no doubt that Worcester, as a bailee for hire, who, by his labor and skill, imparted additional value to the property intrusted to him,was entitled to a lien upon the sash so long as the same remained in his possession. Nevan v. Roup, 8 Iowa, 246 211; McDonald v. Bennett, 45 Iowa, 457; Manufacturing Co. v. Day, 50 Iowa, 252. When the sash were taken from the appellee by the writ of replevin, he lost possession. The question in an action of replevin is, who was entitled to the possession of the property taken on the writ at the time it was so taken ? There can be no doubt in this case, that when the sheriff took the sash Worcester had a lien thereon. As he did not part with possession voluntarily, he waived no right which he then had. The law required a bond to be filed. It was filed, and such bond was available as to Worcester in place of the security afforded by his lien and his retention of the goods. . As he had a valid lien upon the sash when they were taken from him, he had a right to retain the possession of the sash until he was paid. Hence the taking of the sash by virtue of the writ of replevin was wrongful, as the plaintiffs were not entitled to them until they had paid Worcester’s claim. It follows that a judgment was properly entered against the plaintiffs and the surety on the bond for the value of the defendant’s interest in the property at the time of the taking. It is of no consequence that, long after the defendant’s right to a lien was gone, by reason of the fact that the property was taken from him on the writ, he undertook to establish a mechanic’s lien against the building in which the sash were used. He was not then claiming a common law lien. We see no inconsistency in defendant’s claims. * 4 II. Some three weeks after the evidence in this case had closed, and the arguments had been made, and the case finally submitted, appellant Anderson, the surety on the replevin bond, filed objections to the entry of a judgment against him, claiming he had been released from liability by the act of the parties. His objections were overruled, and this action of the court is assigned as error. 247 Anderson was a party to the action from the beginning, and had ample opportunity, when the case was tried, to have introduced any proper testimony he may have had, and to have interposed any defense which he had. We have repeatedly held, that receiving additional evidence after a cause has been submitted, is a matter within the sound discretion of the trial court. There was no abuse of discretion in this instance. We have discussed all of -the questions argued by counsel, and discover no error. The judgment is therefore affirmed.