Murdough v. McPherrin

| Iowa | Oct 25, 1878

Seevers, J.

i. attachmewt: amendment of writ, In Foss v. Isett, 4 G. Greene, 76, there was no seal affixed to what purported to be a writ of attachment, and it was held the writ could not be amended by affixing a seal thereto. This decision was made under the Code of 1851, in which there was no provision authorizing any of the proceedings in attachment to be amended, and strict construction of the attachment law was then the rule.

In Shaffer v. Sundwall, 33 Iowa, 579, the seal of the District Court was attached to the writ when that of the Circuit Court should have been. It was held the defect could not be cured by affixing the proper seal to the writ.

This decision was made under the Bevision, which provided that the attachment law should be liberally construed, and that any “defect of form in the affidavit, bond, attachment or other proceeding” might be amended. Bevision, § 3242.

Since the foregoing decision was made the Code has been enacted, and section 8021 thereof, it is claimed, is identical in substance with the Bevision, § 3242. But we think the former is much broader than the latter. The word “attachment” has been omitted from the Code, and the word “writ” substituted. There is now, therefore, express authority for amending the writ, and in view of the foregoing decisions the change made in the statute is, to say the least, significant, and entitled to consideration. But this is not all. The Bevision provided, § 3242, that “no attachment shall be dismissed for any defect in or want of bond, if the plaintiff, his agent, or attorney will at once substitute a sufficient bond; but the statements of cause of attachment shall not be amended.”

The Code, § 3021, provides that “no attachment shall be quashed, dismissed, or the property attached released, if the defect in any of the proceedings has or can be amended so as to show that a legal cause for the attachment existed at the time it was issued; and the court shall give the plaintiff a reasonable time to perfect such defective proceedings.”

Having provided in express terms that the “writ” might be amended, the General Assembly did not stop there, but expressly enacted that no attachment should be quashed for any defect in any of the proceedings, provided they could be amended, if a legal cause of attachment existed at the time it was issued. The legislative intent is so clear that to now follow the former decisions of this court would, in effect, by judicial construction, ignore the clearly expressed legislative will.

Beveesed,