180 Iowa 705 | Iowa | 1917
Defendant, as sheriff, levied under execution upon a threshing machine and traction engine as the property of plaintiff. M. J. Vandev enter caused notice to be served upon the sheriff, claiming to be the holder of a mortgage upon the threshing machine and engine. After some time had elapsed, the sheriff released the machinery from the levy because the judgment creditor refused to give him an indemnifying bond.
Plaintiff averred in his petition that he was a mechanic, earning his living by threshing, hulling grains and seeds, and doing other work in which he used said engine; that they were the necessary tools and instruments by which he earned his living; that he was a resident head of a family, and that said property ivas exempt from execution; that the sheriff unlawfully retained possession thereof: and he demanded damages for the loss of the use of the property and to the property resulting from the negligence of the sheriff in failing to properly care for and protect the same while held under execution. He further charged that the detention of the property by the sheriff was malicious, and asked judgment for exemplary damages. Defendant in answer admitted the levy, averred that the property was left in the possession of plaintiff; that if same was injured
It is claimed by appellant that the instruction was erroneous because it stated, that the separator Avas not exempt from execution, and that it permitted plaintiff to re-, cover damages to the engine and for the loss of the use thereof only in case the jury found the same to be exempt. It is true that the court, after giving the jury the correct rulé for determining whether the engine was exempt or not, added the clause relating to damages, but evidently did not pretend to fully state the measure of plaintiff’s recovery in this instruction, but only sought to advise the jury that plaintiff Avould be entitled to recoAer damages
“If you find that the property levied upon by the defendant as sheriff was the property of the plaintiff, and was at the time exempt from execution, then you are instructed that it was the duty of the plaintiff, at the time of the levy or thereafter, to claim such exemption and to request the defendant to release said property because of such exemption, and the defendant would not be liable for the detention of said property until such time as knowledge or notice was in some way brought home to him, if it was brought home, that his levy ivas unlawful. If, however, you should find from a preponderance of the evidence that the defendant did have knowledge or notice that should have caused him to release the said property, and he did not do so, then, in such case, his detention of the property, after such notice or knowledge, was unlawful,*709 and lie would be responsible for all damages, if any, resulting from his wrongful detention of said property.”
Plaintiff excepted to both of said instructions before same were read, to the jury. He complains because the court failed to include engine with the separator in the first, and that the latter was erroneous because, under the. holdings of this court, defendant was not required to give the sheriff notice as stated in the instruction.
III. Section 3991 of the Code 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 under oath from some other person, his agent or attorney, that such property belongs to him; stating the nature of his interests therein, how and from whom he acquired the same, and consideration paid therefor; or from the defendant, that the property is exempt from execution; but failure to give such notice shall not deprive the party of any other remedy. 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.”
IV. Appellant complains of the refusal of the court to give a certain requested instruction, and of the admission of testimony over his objections. The instruction was not proper, and the court rightly refused to give the same. The objection to the admission of some of the testimony might have been properly sustained, but it is quite apparent that no prejudice resulted from the ruling of the court.
The verdict of the jury finds ample support in the testimony, and no reversible error appears in the record. The judgment of the lower court is therefore — Affirmed.