59 Iowa 712 | Iowa | 1882
The answer to our mind contained more than is necessary.
We ought perhaps to say in this connection that the plaintiff seems to have conceived the idea that an admission of possession of personal property by Van Sickle was an admission of the defendant’s liability, unless avoided by an averment that the property was owned by some person other than Van Sickle. But possession by Van Sickle was merely presumptive evidence that he was the owner. This presumption might be overcome by evidence that he was not the owner, and such evidence was admissible under the denial that there was property liable to the execution.
The plaintiff’s contention is, if we understand it, that the
It was held in Evans & Son v. Thurston, 53 Iowa, 122, that where on officer has levied an execution, and has been indemnified, it is his duty to hold the property, and subject it to his execution, and that if he releases it he cannot be allowed to escape liability by showing that the property did not belong to the execution debtor. But the reasoning in that case will show that it is not applicable to the case at bar. It is abundantly evident that, if Yan Sickle had no interest in the property in question, the plaintiff sustained no injury by the sheriff’s failure to levy, and we think it allowable for the defendants to show that Yan Sickle had no interest. Governor v. Campbell, 17 Ala., 566.
Affirmed.