Dean v. Goddard

13 Iowa 292 | Iowa | 1862

Wright, J.

The writ was held void, for the reason that it did not “ show that it was issued upon a judgment rendered by an officer.” And this ruling we think was erroneous. The failure to attach the words 11Justice of the Peace, ” or the letters “ J. P.” to the name of the person rendering the judgment, would not have the effect of "rendering the writ absolutely void in the hands of the constable, so as to enable him to protect himself for his improper or negligent treatment of property seized or levied upon by virtue thereof. The defendant in the execution might claim that it was irregular and voidable, perhaps, but not void. If not void as to the defendant, the defect certainly could not avail the constable, nor his sureties, after he had acted upon it as a valid writ, and suffered property seized thereunder to perish because of his abuse of the same.

It was the duty of Matthews, upon the expiration of his term of office, to deposit with his successor his official dockets and papers, to be kept as public records. His successor was invested with power to issue executions on judgments found unsatisfied in the dockets, thus coming into his hands, in the same manner and with like effect as the justice rendering the same. (Code, 1851, §§2377-79, and 2387.) And though it would be more strictly proper and regular that the official character of the justice or person rendering the judgment should be expressly stated, yet this clerical omission will not vitiate nor make void the writ, for its basis, purpose and object sufficiently appear, and especially so, as the justice issuing it is a sworn public officer, and some presumptions may be legitimately indulged in, where he is in the discharge of a duty enjoined by law. Not only so, but the execution so describes and identifies the judgment as to render certain the authority upon which it was issued, and was therefore sufficient to invest the officer with power to levy and sell. If so, it would not be void. (Sprott v. Reed, 3 G. Greene, 489; Sheldon v. Van Buskirk, 2 Comstock, 473; Elliott v. Cronk's Administrator, 13 Wend., 35.)

Again, it may be questioned whether, under the state of the pleadings, the objection, if good upon general principles, could avail. After admitting the judgment, execution and levy, an answer was filed denying the same matters. There was no withdrawal of the first, no substitution, no leave to Ale an additional or further answer, nothing indicating that the several answers were to be treated as one, but the cause was tried upon the issues thus made up, though clearly conflicting and inconsistent. Under such circumstances, we regard it very doubtful whether defendants were not estopped from denying the authority for issuing the writ. But holding as we do above, it is not necessary to pass upon this view.of the case.

Reversed.