Cooley v. Davis, 34 Iowa 128

Cooley v. Davis

34 Iowa 128 | Iowa | 1871

Day, J.

1. Replevin: from legal custody. At common law, the owner of a chattel could not maintain an action of replevin, for the possession of goods taken from him by virtue of legal process. Any attempt so to regain its possession was deemed a cohtempt of the court issuing the process. See Funk & Hardman v. Israel, 5 Iowa, 450.

Section 1995 of the Code of 1851 modified this rule of the common law, and authorized the maintenance of the action of replevin for personal property seized by legal process, when the petition states under oath that it was exempt from seizure by such process. The same provision *130is contained-in the Revision, section 3553, substituting “ execution or attachment ” for the term “ legal process.”

2. — intoxicatmg liquors. In Funk & Hardman v. Israel, supra, it was held (Wright, C. J., dissenting) that this provision of the Code had reference to sections 1898 and 1899, declaring the exemptions from executions, and that intoxicating liquors, not being included in these exemptions, did not come under the modification of section 1995.

Under this decision intoxicating liquors would be governed by the principles of the common law, and when seized by virtue of legal process, could not be replevied.

3. — unconstitutional law. But the term “ legal process” contemplates a process issued in virtue of and pursuant to law. If a warrant for the seizure of liquors should be issued by a magistrate of his own volition, not by authority of any law, it could not be contended that a seizure made in pursuance thereof would be lawful, or that the possession thus acquired would be by virtue of legal process.

Nor can property seized under an unconstitutional law any more be said to be seized under legal process, than if the process issued without law. A law which infringes the provisions of the constitution is void. 1 Kent (8th ed.) * 449.

The petition alleges that the wine and beer in question were seized by virtue of a search-warrant, issued by a justice of the peace, under a pretended law of the said county prohibiting the sale of wine and beer therein. The law referred to, chapter 82, acts of the thirteenth general assembly, has, by this court, been held unconstitutional. See State v. Weir, 33 Iowa, 134, and State v. Metcalf, id. 610.

The search-warrant, therefore, furnished no authority for the retention of the property, and the demurrer should have been overruled.

Reversed.