225 N.W. 947 | Iowa | 1929
Hogan Brothers sued Dusil in the district court of Iowa County to recover on promissory note, took out writ of attachment addressed to the sheriff of Linn County, and directed defendant, as such sheriff of Linn County, to levy upon the automobile in question. Plaintiff had purchased the automobile from Dusil more than a month before, and concededly was the owner and in possession at the time of the service of the writ. Defendant made the levy and took actual possession under it March 22, 1926. Plaintiff, on March 23, 1926, served on defendant the requisite notice of ownership and demand for release. *510 On March 24, 1926, Hogan Brothers executed to defendant bond for indemnity. On March 25, 1926, the Iowa district court, on Hogan Brothers' application in the attachment suit, ex parte, and without notice to the present plaintiff, issued an order to defendant to deliver the car to them. This the defendant did on March 26, 1926, and has not since had possession of the car or made any claim thereto.
By our statute, Code of 1927, Sections 11698 et seq., 12117, the defendant was required to levy on property on which the attaching plaintiff directed him to levy unless he had received notice of ownership, and he was protected from all liability by reason of the levy until he received notice. Until then, no action could be maintained against him. Nevertheless, the levy on the property of the plaintiff in an action against another was wrongful. Defendant, on refusal to release the property after notice, became a party to the wrong, and liable to action.
This court held in Woodling v. Mitchell,
"If the petition had stated a cause of action in replevin, and it was shown that defendant had the property in his possession when notified of plaintiff's ownership, he could not defeat the action by showing that, after receiving the notice, he had sold and converted the property. Hardy v. Moore,
This and the case of Hardy v. Moore were reaffirmed in Mitchellv. McLeod,
ALBERT, C.J., and STEVENS, FAVILLE, De GRAFF, and WAGNER, JJ., concur.