Kaster v. Pease

42 Iowa 488 | Iowa | 1876

Seevbbs, Oh. J.

1. EXECUTION claim by third person: written notice. I. One ground of demurrer is that it is not averred plaintiffs notified defendant in writing of their cla’m the property named in the petition at any time before bringing the action. This part of the demurrer is based on Sec. 3055 of the Code, which is as follows: “An officer is bound to levy an execution on any personal property in the possession of, or that he has reason to believe belongs to, the defendant, or on which the plaintiff directs him to levy, unless he has received notice in writing from some other person, his agent or attorney, that such property belongs to him; or if after levy he receives such notice, such officer may release the property unless a bond is given as provided in the next section; but the officer shall be protected from all liability by reason of such levy until he receives such written notice.” And Sec. 3056 provides that upon receiving such notice, the officer may notify the plaintiff that an indemnifying bond is required, and Sec. 3057 provides that if such bond is not given, the officer may refuse to levy, or if he has done so, and the bond is not given in a reasonable time after it is required,’the officer may restore the property to the person from whose possession it was taken and the levy shall stand discharged.

In the construction of statutes the following rules are to be observed: “1. What was the common law before the making of the act? 2., What what was the mischief for which the common iaw did not provide? 3. What remedy has the legislature provided to cure the disease? And 4. The true reason of the remedy?” Sedgwick on the Construction of Statutes and Constitutional Law, 198. Now the common law required the sheriff at his peril to make a levy; if he did so when he should not he was liable to one party, if he failed to levy when he should have so done, he was liable to the other. This rule being deemed harsh and unjust to the officer, it was changed when the Revision took effect; Sec. 3277 of which provided, that if the officer “doubted” whether the property was subject to levy he might require an indemnifying bond. By Sec. 3278 of the Revision it was provided, that if the required bond was not given the officer might refuse to levy, or if the levy had been made and the bond was not given in reasonable time, the officer could release the property and the levy stand discharged. And Sec. 3279 provided, that where an indemnifying bond had been taken the claimant or purchaser of the property should look alone to the bond of indemnity, and no action could be maintained against the officer. Sec. 3258 of the Code is a re-enactment of Sec. 3279 of the Revision. The change, then, substanstially is that under the Revision the officer could not be compelled to make a levy'in any case, without an indemnifying bond, if he required it; if he had “doubts” as to the propriety of the levy he could require such bond, and when taken he was released from all liability. The Code, however, takes a step back in the direction of the common law, and requires that he shall make the levy, it matters not what his doubts are, unless he has received notice in writing that some person other than the execution defendant claims the property, then and not until then can he require a bond of indemnity. Mere rumors, a parol notice, or the doubts of perhaps a reluctant officer are not sufficient to justify him in refusing to make the levy. So, too, under the Revision the officer who had made a levy, the correctness of which he doubted, could demand such bond, and if it was not given in a reasonable time lie could restore tlie property, but it did not provide that the officer should be protected from liability in such case, and he without doubt would be liable for the damages caused by the taking and detention of the property. Under the Revision the officer could protect himself in all cases by demanding a bond. Under the Code he cannot do this, for he is bound to make the levy; this much he must do, to avoid liability to the plaintiff in execution and from the claimant of the property lie is protected from ‘‘all liability until he receives such written notice.” The language of the Code is exceedingly plain and easy to be understood, and the change including the remedy intended is equally so. The officer being now compelled to levy, and unable to protect himself from liability, it was but just and reasonable that the law should protect him until he had an opportunity to protect himself. The first change demanded the second, unless a complete change in the policy inaugurated in the Revision was intended.

The remedy given the officer is entirely consistent with the increased liability. It will not do to say that the liability incurred in this action is not covered by the Code. ITow or why shall the terms “ all liability ” be so restricted. For certainly the defendant is liable to have a judgment for costs rendered against him, and this is certain to follow unless he incurs a further liability by employing attorneys to defend the action.

It is said the statute is unjust and against natural rights, if the construction given to it should prevail. To this position several answers may be given. A written notice from the plaintiffs was all that was required. This they could give or not, and, this being so, it would seem that an officer who was bound at his peril to act should be protected until the notice was given. Besides the statute is not any more against natural rights than the rule, once recognized to be good law, that if a demand was necessary to the plaintiff’s recovery and was not made, the same consequences resulted under such rule as the one now established.

2 _._. -• But it is claimed that sections 2572, 2573, 2574 and 2775 of the Code have muck to do with the correct determination of this question. At the very most these sections are mere cumulative remedies. The officer may relieve himself from liability in the way pointed out in those séctions, but he is not compelled to do so.

II. The execution was regular on its face, aud there was a judgment upon which it.could be based. The most that can be said is that the judgment was not in the usual, or perhaps proper form. But we apprehend it was sufficient when attacked collaterally — but whether this be so or not, the execution and the judgment was clearly sufficient to justify the officer in making the levy.

Aeeirmed.