$1,101.11, in payment for said lumber and materials, which warrant they had received from the trustees of Algona Seminary on their contract. Plaintiffs' original judgment against the trustees of Algona College was obtained on said warrant on the fourteenth day of October, 1874, in the Kossuth district court. By omission the clerk failed to make any record of the same, except an entry on the judgment docket of said court. On the sixth day of May, 1876, plaintiffs had said cause re-docketed, and a final judgment entered in due form against the "Trustees of Algona College" for $1,425.49. On the fourteenth day of October, 1874, 0. H. Baker obtained a judgment for $1,719.25 against "Algona College.' By omission the clerk failed to make any record of the same except an entry on the judgment docket of said court. On the seventeenth day of November, 1875, the said Baker filed a motion and had a record of said judgment completed against "Algona College." Notice of said motion was duly served on J. E. Stacy, vice-president of said trustees of Algona College, but no notice of said motion was served on the plaintiffs.

On the nineteenth day of February, 1877, O. H. Baker caused a general execution to issue on said judgment, and the real estate conveyed by Lewis H. Smith, before referred to, to be sold thereunder; the said Baker himself becoming the purchaser for the unsatisfied amount of his judgment, he having before, on the fifteenth day of October, 1874, levied upon and sold a judgment in favor of Algona College against S. G. A. Read, for $400.

In the action of the plaintiffs on the warrant before mentioned the defendant was, in the original petition, designated as the "Algona College," and on the fourteenth day of October, 1874, by leave of court, the petition was amended by inserting therein in lieu of the words "Algona College," wherever they occur, the words "The Trustees of Algona College." In all catalogues issued by the officers of said institution since May, 1873, the name thereof as designated therein is the "Algona College." In the minutes kept by the said corporation the record of the different meetings frequently commences: "At a meeting of the board of trustees of Algona College," etc.

While this action was pending, and before decree therein, an act was passed legalizing the incorporation of the "Trustees of Algona College," which act took effect by publication April 3, 1878. See chapter 66, Laws 1878.

The position of the plaintiffs is that the judgment of the

defendant O. H. Baker is void, by reason of the misnomer, the judgment being against "Algona College" instead of the Trustees of Algona College." Upon this claim alone the plaintiffs base their right to the relief asked.

The objection is of a purely technical character. Whether or not it should avail there is some conflict of authority. It is not claimed that notice of the action was not served upon the proper officer of the corporation, "The Trustees of Algona College."

It appears that the corporation was designated by the corporation itself by the name of "Algona College. Service upon the notice in the original action of plaintiff against the "Trustees of Algona College" was accepted by "J. E. Stacey, vice-president of the Algona College, the defendant named in the within notice," notwithstanding the notice was directed to "The Trustees of Algona College." In Minot v. Curtis, 7 Mass. 491, it is said: "We know not why corporations may not be known by several names, as well as individuals." It would seem from this authority that an action might well be brought against the corporation by the name by which it was known and designated, though different from the name by which it was incorporated. But, however, this may be, we think the better rule, and the one supported by the weight of authority, is that a misnomer in a corporation can be taken advantage of only by plea in abatement. Proprietors of Sunapie v. Eastman, 32 N. H., 470. The case of Lafayette Insurance Company v. French, 18 Howard, (U. S.) 404, is directly in point. The Lafayette Insurance Company was chartered by the state of Indiana. An action was brought upon a policy in Ohio, and judgment was recovered against "The President, directors and company of the Lafayette Insurance Company.' Upon a record of this judgment an action was brought against the "Lafayette Insurance Company," in the circuit court of the United States in Indiana, and judgment entered against the company. Upon the trial the defendants objected to the introduction in evidence of a copy of the record of the judgment recovered in Ohio, because it did not show a judgment against the defendant. The court admitted the judgment in evidence. Upon this branch of the case the supreme court say: "It was objected that the judgment recovered in the Commercial Court was against the president, directors and company of the Lafayette Insurance Company, while this action is against the Lafayette Insurance Company; but the declaration describes the judgment correctly, and then avers

(485)

that the judgment was recovered against the defendants by that other name.

"We must assume that this fact was proved; and the only question open here is whether, if a mistake be made in the name of a defendant, and he fails to plead it in abatement, the judgment binds him though called by a wrong name. Of this we have no doubt. Evidence that it was an erroneous name of the same person must, therefore, be admissible; otherwise a mistake in the defendant's name, instead of being available only by a plea in abatement, would, under a judgment, be wholly inoperative." In this case it is not contended, that by the designation "Algona College" a different corporation from the "Trustees of Algona College" was intended. The only point relied upon is that a judgment, which was intended to be recovered against the defendant corporation, was recovered against it by a name differing from that by which the defendant was incorporated. The above case is direct authority for the position that such judgment is not void, and that advantage of the misnomer can be taken only by plea in abatement. We regard the above case as containing a correct exposition of the law. As the defendant Baker's judgment was obtained upon the same day as the judgment of the plaintiff Wilson, and Baker has issued execution and sold property under his judgment, he is entitled to preference. Cook & Sargent v. Dillon, 9 Iowa, 407. The court erred in declaring the plaintiff's judgment paramount, and in setting aside the sheriff's sale to Baker.

Reversed.

J. I. CASE & Co. Appellants, vs. N. WOLEBEN and others,

Appellees.

Filed December 3, 1879.

A constable levied upon certain horses as the property of A. They were claimed by B. and C. Replevin was brought in justice's court for their recovery, possession being taken by plaintiff's therein. Before issue was joined, B. and C., finding they had made no demand, dismissed their proceedings, and an order was entered for the return of the property to the constable. No writ of restitution was issued for some months, the property in the meantime being in the possess.on of B. and C., who, during that time, gave a mortgage thereon to plaintiffs. Held, that the order of return was not an adjudication of the ultimate right of possession, and that the mortgage was not subject to any rights acquired by the constable.-[ED.

Appeal from Winneshiek district court.

Action to replevy two horses. The plaintiff's claim the property by virtue of a chattel mortgage executed to them by Thomas Welsh and William Welsh, Jr., intervenors. The defendant Woleben claims to hold them as constable. Sometime previous to the commencement of this action the defendant Tuttle obtained a judgment against one William Welsh, Sr., father of the intervenors, Thomas Welsh and William Welsh, Jr. An execution was issued upon the judgment, and levied by the defendant Woleben, as constable, upon the horses in question. Thomas Welsh, claiming to be the owner of one of the horses, and William Welsh, Jr., claiming to be the owner of the others, brought an action of replevin, each for himself, before a justice of the peace, against Woleben, for the horses, and recovered possession of them. Before issue was joined they discovered that their actions were premature in that they had commenced them without the service of notice of claim of ownership upon Woleben, as provided by statute. They accordingly dismissed their actions, and an order was entered by the justice in each case that the horse replevied be returned. This occurred upon the thirtieth day of July, 1877. The horses were not returned, and no writ of restitution was issued until the thirty-first day of December, 1877. In the meantime the horses remained in the possession of Thomas Welsh and William Welsh, Jr., who executed to the plaintiffs the mortgage under which they now seek to recover the property. Upon the writ of restitution, issued December 31, 1877, the horses were taken and returned to Woleben, as constable, who again levied an execution upon them, issued upon Tuttle's judgment against William Welsh, Sr. In the present action Thomas Welsh and William Welsh, Jr., intervene, and claim each to be the owner of one of the horses, subject to the plaintiff's mortgage, and the undisputed evidence establishes such ownership. There was a trial without a jury, and judgment was rendered for the defendants. The plaintiffs and intervenors appeal.

O. J. Clark and J. G. Morss, for appellants.

Brown & Wellington, for appellees.

ADAMS, J. It is claimed by the appellees that at the time Thomas Welsh and William Welsh, Jr., executed the mortgage to the plaintiffs there had been an adjudication against the mortgagors and in favor of Woleben, whereby it was adjudged that the right of possession was in him. The adjudication relied upon is the order of return. The appellees cite Marshall v. Bunker, 40 Iowa, 121. The most that could be

claimed for that case is that where issue involving the right of property is joined in an action of replevin, and the plaintiff dismisses his action, the defendant is entitled to judgment. In the In the replevin action in question there was not only no issue of any kind joined, but no payment rendered except for costs. By the order it was determined that under the circumstances the constable appeared at that time to be entitled to the horses. But they were allowed to remain in the possession of the intervenors, and while in their possession they were mortgaged by the intervenors to the plaintiffs. In our opinion the mortgage is not subject to any right acquired by the constable.

Reversed.

CLARA FLETCHER, Administratrix, Appellee, vs. ALBERT VANDUSEN and others, Appellants.

Motion to vacate the injunction in this case held not to fairly raise the question as to the sufficiency of the verification of the petition as an affidavit. Objection to the continuance of the injunction, on the ground that at the time of its issuance no order for a receiver of the property had been made, held, without merit. Petition in this case held sufficient to authorize the injunction.-[ED.

Appeal from orders of the judge of the Harrison district

court.

On the twelfth day of February, 1879, the plaintiff applied to the Hon. C. H. Lewis, judge of the Harrison district court, for a temporary injunction against the defendants and the appointment of a receiver. The petition in which this application was made is entitled in the district court of Harrison county, August term, 1879, and sets forth, at great length and with much particularity of detail, facts of which the following is the substance:

"That plaintiff is the administratrix of the estate of J. B. Fletcher, deceased; that on the seventh day of October, 1870, J. B. Fletcher and Albert Vandusen, under an agreement, not in writing, entered into a partnership for farming, dealing in live stock, and such other enterprises as they should thereafter undertake, to the capital of which they were to contribute, and in the losses of which they were to share equally; that said partnership was carried on under said agreement until the death of said J. B. Fletcher, on the nineteenth day of December, 1878; that J. B. Fletcher and Albert Vandusen, in the prosecution of their copartnership business,