Osborn v. Cloud, 23 Iowa 104

Osborn v. Cloud

23 Iowa 104 | Iowa | 1867

Dillon, J.

i. jueismcattached^ property. I. The service being by publication, and the levy on the McTighe judgment having been made after the return day of the writ, and after it had been actually returned into court, and after default had been entered, we concur in opinion with the learned judge below, that the court acquired no jurisdiction over the McTighe judgment, and the order subjecting it to sale was void, and the sale under such an order was also a nullity.

2 TOja “ purchaser • unnecessary. . II. This answers the objection of the appellant’s attorneys, that no sufficient tender to Ilubbell of the amount he bid at the sale, has -been proved, or if ■ Prove(l) it has not been kept good. If the gaje wag Y0^ jfc may j^g ggj. asjqe without such tender.

s.q — -failure motion. ' III. This also answers the point made by appellant’s counsel, that the validity of the levy of the attachment, on the McTighe judgment, was adjudicated in this cause when the original judgment was rendered and no appeal was taken therefrom.

If, as we hold, the court had no jurisdiction in respect ■ to the McTighe judgment, any adjudication or order it made, was without legal force or effect. -

*108i. abatement : anotheTyac-f tl0n‘ *107IY. Ye find that the point is not well taken, that there is another action pending, in which the defendant *108asks the same relief that lie now seeks. The suit referred to is by one Hampton and not the defendant.

The present defendant is also made a defendant in Hampton’s suit, and so is the present plaintiff. That the present defendant might by cross petition in Hampton’s suit, obtain the relief he now asks, is no bar to his right to make the present application.

Y. It is also argued that Cloud, who makes this motion, has ratified the sheriff’s levy and sale, by receiving the proceeds of the latter. This point is not sustained by the evidence.

The proceeds of the sale were received by Osborn and not by Cloud. Arranging for the lots sold on the second execution, would not ratify the sale of the AlcTighe judgment on the first execution.

b. judohmt: feviedupoa andsoia. YI. Again, the court is of opinion that although' a judgment is for some purposes called or likened to a chose ™ action (Burtis v. Cook, 16 Iowa, 194; Ballinger v. Tarbell, Id. 494), and, although ^ gta¿ute provi¿es that “bank-bills and other things in action may be levied upon and sold, or appropriated as herein after provided (see section 3322), and assignments thereon by the officer shall have the' same effect as if made by the defendant, and may be treated as so made” (Rev. §§ 3272, 3276), still, the sale of a judgment' in the manner here attempted is unauthorized. Section 3267 speaks of “ levying on property and collecting £ things in action,’ by suit in the officer’s own name.” Why speak of collecting by suit if it was meant that “ things in action ” should include a judgment already rendered % The use in section 3272, above quoted, of the words “ assignments thereon,” that is, on the instrument shows that the legislature did not *109contemplate the levy upon a judgment, the same as upon a bank-bill, promissory note and the like.

So section 3322, referred to in section 3272, speaks of “bank-bills, drafts, promissory notes and other papers of a like character,” etc. This is language not applicable to judgments.

The sections referred to, contemplate property, such as bills, notes, etc., that may be seized and taken into the possession of the officer; property having a visible existence, and of a nature to be present at the sale and delivered to the purchaser.

The statute provides for reaching “ debts due the defendant,” and the mode thus provided is by garnishment.

The plaintiff should have pursued this course; should have garnished McTighe, who was' a resident of the county, instead of levying upon the judgment as he would do upon a horse or other chattel.

' The sections referred to above, have introduced no such novelty into the law of Iowa, as levying upon and selling the judgment of a court.

Affirmed.