59 Iowa 200 | Iowa | 1882
Lead Opinion
Code, section 3058, provides that an action against an officer seizing property on execution is barred, if an indemnifying bond has been taken and filed in the proper court as required by sections 3055, 3056. Under these statutes' defendant insists that an action cannot be maintained against him.
We have held that section 3058, so far as it prohibits an action of replevin against an officer to recover the specific goods seized by him, is unconstitutional and void. Foule & Roper v. Mann, 53 Iowa, 42. But it is insisted that the provision in so far as it is applicable to an action to recover the value of property seized by the officer, is not in conflict with the constitution.
The provision, if it be enforced, would bar a remedy against
It is no reply to this argument to insist that the statute is intended for the pi’otection of the officers of the law. The law does not and ought not protect them. when they violate the rights of property of persons against whom they have no writs. But they have ample protection by the indemnifying bonds which they may demand. If these bonds are sufficient they can suffer no loss.
We think the statute, if enforced so as to bar actions against ministerial officers in cases like the one before us, would result in gross abuses and oppression. The reason and principles upon which the decision in Foule & Roper v. Mann is based, are applicable to the case of an action to recover the value of goods illegally seized by a ministeral officer.
The defendant in the examination of the plaintiff and other witnesses asked many questions tending to show the business transactions of the father and son, their declarations showing an intent to defraud their creditors, and the knowledge of the plaintiff of their practices and purposes. This was, we think, erroneously excluded.
The burden rested upon defendant to show fraud on the part of her husband in covering up his property by causing the title to be held by his wife. The wife’s knowledge and participation in the fraud defendant was required to establish. Fraud cannot always be shown by direct evidence, but is usually proved by circumstances. Neither can the knowledge of or participation in fraudulent designs and transactions be proved in many case except by circumstances. Those who are charged with fraud in transactions investigated in a court of justice, when called upon to give evidence in regard to such charges, are always subject to such an examination as will disclose their knowledge of the fraud and purposes connected with the transactions. So, if, on account of the relations of the parties, confidence may be presumed to exist between them, the law will favor such an examination, when they are required to testify touching matters alleged to- be fraudulent, as will disclose their true character.
Fraudulent practices, of like character about the time of the transactions in question, and knowledge of such practices by one charged with participation in the fraud, may be shown.
It is not necessary hei*e to recite the questions which we think defendant ought to have been permitted to ask. The application of the rules we have stated will clearly indicate at another trial what evidence ought to be admitted.
Other questions discussed by counsel need not be considered. For the errors above pointed out the judgment of the Circuit Court is
Beversed.
Dissenting Opinion
dissenting. — I think that the court erred in striking from the answer the allegations based upon the provision of the statute contained in section 3058 of the Code. I do not think that the statute is unconstitutional. While, therefore, I concur in the reversal of the case, I do so upon the ground that the court erred in holding that the statute
Section 3058 of the Code is in these words: “The claimant or purchaser of any property, for the seizure or sale of which an indemnifying bond has been taken and returned by the officer, shall be barred of any action against the officer levying on the property if the surety on the bond was good when it was taken. Any such claimant or purchaser may maintain an action upon the bond and recover such damages as he shall be entitled to.” The provision of the constitution alleged to be violated is in these words: “No person shall be deprived of life, liberty, or property, without due process of law.” Art. 1, § 9, Constitution of Iowa. It has been held in Foule & Roper v. Mann, 53 Iowa, 42, that where the property of a third person is seized upon execution he is depri/oed of it, notwithstanding his title is not divested by the seizure, nor by a sale thereunder, and the process being quite clearly, so far as he is concerned, not “due process of law,” within the proper meaning of those words, it followed that the provision was unconstitutional so far as it was designed to bar an action of replevin. The case before us is to my mind entirely different. We have to determine whether the plaintiff’s alleged claim can, under the statute, be properly held to be in the nature of property. If it is she is without question deprived of it. The question in Foule & Roper v. Mann, was as to the effect of the seizure and sale upon what was indisputably property.
Proceeding then to inquire whether the plaintiff’s alleged claim can, under the statute, be properly held to be property, I have to concede of course that where a person’s property is seized upon an execution against another, he would, but for the statute, have a claim against the officer for damages, and that such claim would be in the nature of property. I have to concede, also, that such claim having once properly arisen it could not be taken away by statute. But where the statute is enacted in advance of the seizure, I do not think that
Let us see into what kind of a dilemma the majority opinion leads us. The statute imperatively requires an officer, who has been indemnified, to proceed to subject the property to the execution; and this court held in Evans & Son v. Thurston, 53 Iowa, 122, that he could not escape the obligation. We have then an act which it is legal and illegal to do; or to put the case more strongly we have an act which it is illegal to omit to do and illegal to do.
In my opinion the true view is that no person can he deemed a trespasser for doing what the law requires him to do. I am not able to entertain any doubt. But if I did it would not follow that I should- be justified in holding the statute unconstitutional. A statute is not to be held unconstitutional which is merely of doubtful constitutionality. It is not for a court to lightly impugn the action of a co-ordinate branch of the government.