7 Iowa 501 | Iowa | 1859
The objection of a want of notice, is not entirely intelligible. If the defendant means that he actually had not knowledge of the proceedings, the record shows the contrary, for the rule was made and served four days, and he answered it three days before the final order. But,, if he means that ho was not notified to show cause why an attachment should not issue, and to purge himself, it admits of doubt, whether the case is one which entitles him to this. Upon this, we refer to sections 1602 and 1603 of the Code; but as the next objection is fatal, it is unnecessary to discuss the present one.
We are of the opinion that this was not a case in which the court could exercise its authority in a summary manner. The sheriff holds a writ of attachment against the ■firm of Start & Gaddis, and levies it on an iron chest, which is claimed by a third person as his property. The court, on motion, orders the claimant to deliver up the key. Can the court thus assist an officer in his duty ? — especially, can it interpose between the officer arid a third person, .claiming the property ? If it bo urged that the plaintiff insisted that the safe contained property belonging to the .defendants in the attachment suit, it may be answered that the third person, S. E. Start, was garnished in the same action, so that if he so held any of their property, he would be answerable for it, under that process.
If the court may interpose by its order in this manner, may it not order a party to deliver the key of his house, when the officer is not authorized to break it, or to open a door; or, to deliver property which is on his person, as money, or a watch, or the like, which, therefore, the officer cannot seize ? If this may be done, it breaks down, at once, all those guards and barriers which have ever been
Start, the defendant, was acting in the defense of what he claimed to be his right of property. He does not appear to have done any act as an attorney, either in this cause, or otherwise, but stood only as a third person, claiming property in. the thing. He is not punished for any act done as an officer of the court; nor even for the refusal in open court, to deliver the lrey — that is, it is not for a personal disrespect, but it is only for the refusal to obey the order of the court to deliver the keys. And we are of the opinion that it was not within the authority of the court to make the order, and consequently that it could not punish the defendant as for a contempt.
The order of the court imposing the fine is reversed.
