56 Iowa 133 | Iowa | 1881
The grounds of the demurrer which the court sustained are as follows:
‘‘ 2. The said facts do not entitle the said plaintiff to any relief whatever.
“ 4. When the act of a defendant was lawful and right at the time it was done, circumstances subsequently arising cannot make it unlawful so as to create a cause of action without demand of restitution or repai*ation by the party claiming to have been injured by the act.”
Section 3198 of the Code provides: “If by the decision of the Supreme Court the appellant becomes entitled to a restoration of any part of the money or property that was taken from him by means of such judgment or order, either the Supreme Court or the court below may direct execution or writ of restitution to issue for the purpose of restoring to such appellant his property or the value thereof.” In Hanschild v. Stafford, 27 Iowa, 301, it was held that this section was designed merely to afford a cumulative and summary remedy, and that a party may resort to the ordinary suit for redress. It is insisted by the appellee that the seizure was under due process of the court and rightful in its inception, and that no subsequent event can render that act wrongful. This may be admitted. But the moment that the judgment under which the defendant acted was reversed, it became the legal duty of’ the defendant to restore to the plaintiff all property, or the value thereof, taken under the judgment. The continuing to hold the property after the reversal of the judgment was 'without legal authority, and wrongful, and rendered the defendant liable to an action. No demand of
Reversed.