Bummelhart v. Boone

Ladd, J. The petition in replevin was filed September 11, 1908, and the writ issued on the same day. At that time, according to the amendment to the petition, and for ten or twelve hours thereafter, the two span of mules in controversy were in Linn County, and the defendant Emerson Walmer was a resident thereof. The venue then was rightly laid, even though defendant Boone was a resident of Johnson County, for section -4163 of the Code provides that such an action may be brought “in any county in which the property or some part thereof is situated.” And this conclusion is not obviated by the circumstance that one team of mules had been taken a few rods across the line between Linn and Cedar Counties after [392] the writ had been placed in the hands of the sheriff, though prior to its service. Section 4169 of the Code provides that: “When any of the property is removed to another county after the commencement of the action, the officer to whom the writ is issued may follow the same and execute the writ in any county of the state where the property is found. For the purpose of following the property, duplicate writs may be issued, if necessary, and served as the original.” The expression, “commencement of the action,” is not here employed ■ in a technical sense, but has reference to the issuance of the writ of replevin, as plainly appears from the section following, which authorizes the officer to follow the property and take it from any person receiving it from 'the defendant subsequent to the issuance of the writ. Four days subsequent to the filing of the petition, Walmer filed a motion to quash the writ. In so doing he assailed the writ because of the alleged insufficiency of the petition. The sole issue was the right of possession, and the motion directly assailed the plaintiff’s claim thereto. Manifestly, then, the appearance was for a “purpose connected with the cause,” and rendered the' service of an original notice on Walmer unnecessary. Section 3541, Code. That petition, as amended, contained all the requirements of section 4163 of the Code, and alleged, in substance, that the property was obtained from plaintiff through conspiracy and fraud practiced on him by the three defendants; Boone first obtaining possession of the property and afterwards transferring the same to the Walmers in the perpetration of their fraudulent enterprise. It also alleged a rescission of the oral arrangement under which possession was obtained and a demand on Emerson Walmer and William Boone for the property. The rescission was because of the fraud alleged to have been practiced as well as of the defendant’s inability to [393] perform, and not owing to the last alone, as assumed by counsel for appellee in argument. If possession was obtained by Boone as alleged and transferred to Walmer in the execution of a scheme to defraud, it is not perceived on what theory the action was dismissed as to the former and the writ quashed as to the latter. Even if it were to be conceded that the sheriff illegally seized the team in Cedar County, there could be no question as to his authority under the writ to take that in Linn County. In any event, the latter was in issue, and the ruling must have been based on the thought that moving to quash did not constitute an appearance to the merits in virtue of section 3541 of the Code. As our conclusion is otherwise, the ruling on both motions are reversed, and the cause remanded for further proceedings not inconsistent -with this opinion. — Reverséd.