Draper v. Ellis
Supreme Court of Iowa
Appeal from, Lee District Court. A proceeding in replevin to recover the possession of a horse valued at some $80. The trial had before the magistrate resulted in a judgment for plaintiff. The cause was removed by appeal to the District Court, where the judgment below was afimned upon a second hearing.
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Appeal from, Lee District Court. A proceeding in replevin to recover the possession of a horse valued at some $80. The trial had before the magistrate resulted in a judgment for plaintiff. The cause was removed by appeal to the District Court, where the judgment below was afimned upon a second hearing. Although the record shows that the defendant appeared in both courts on the hearing of the cause, it does not show that it was the defense which he pleaded or set up to the merits of the action. Previous however to his entering upon the trial in the District Court, he moved to dismiss the suit,…
1Opinion of the Court
Lowe, C. J.-
In replevin the wrongful detention, under our statutes, is the gist of the action; and a failure to allege this fact in the petition is a substantial defect which maybe taken advantage of on demurrer, in arrest, or upon error. Fible v. Choplinger, 13 B. Mon. 465; People v. Booker, 8 Howard, 258; Gould v. Glass, 19 Barb. 185; Senny’s Ohio Code, 114, and note 6, 23 and 53; Swans PI. & Prec. 240.
In this case the defendant went to trial before the magistrate without raising any objection to- the petition, and although the record is silent as to what kind of a defense was set up,…
2Cases cited1 opinion
- Gould v. GlassNew York Supreme Court · 1855
3Cited by7 opinions
- Linden v. GreenSupreme Court of Iowa · 1890
- Richards v. W. H. Hellen & SonSupreme Court of Iowa · 1911
- Kennedy v. RobertsSupreme Court of Iowa · 1898
- Jacksonville, Tampa & Key West Railway Co. v. NeffSupreme Court of Florida · 1891
- Rea v. FlathersSupreme Court of Iowa · 1871
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