71 Iowa 90 | Iowa | 1887
The petition states that the plaintiff, as agent of William Britt, under and by virtue of a chattel mortgage executed by L. W. Hutchinson, took possession of the per
It will be observed that the plaintiff was not in the actual possession of the property when he was garnished, and we do not believe that a mere right to such possession would render him liable in such proceeding. The statute provides that a garnishee “ must retain possession of all property * * * then or thereafter being in his custody, or under his control.” Code, § 2975. The possession and control referred to is something more than constructive possession and control. Suppose Mrs. Hutchinson had destroyed the property, or had so disposed of it that it could not be found; clearly the plaintiff would not be liable as garnishee. In order to make him responsible, he must have the property in his possession, so that he can surrender it, if the court so directs, in exoneration of his liability as garnishee. If out of possession, and.he can obtain it upon demand, it will be conceded, for the purposes of this case, that he is bound to make such demand. But nothing more can be required. He cannot be required to commence an action, and incur costs and expenses, and possible hazard, in order to relieve himself from liability.
Affirmed.