Allen v. Wheeler

• Decision Date: 21 October 1880
• Citation: 7 N.W. 111,54 Iowa 628
• Parties: ALLEN v. WHEELER AND OTHERS.
• Court: Iowa Supreme Court

54 Iowa 628

7 N.W. 111

ALLEN

v.WHEELER AND OTHERS.

Supreme Court of Iowa.

Filed October 21, 1880.

Appeal from Clinton circuit court.

The defendant George L. Wheeler, as constable, levied certain writs of attachment upon a span of mules and a wagon and harness, at the suit of defendants Hey and Butterfield against one Walters. The said property was held by said Wheeler, upon said writs, until June 1, 1878, at which time the attachment suits were tried, and judgments were rendered for the plaintiffs and against said Walters. Executions were issued upon said judgments and placed in the hands of said Wheeler, who levied the same upon said property, and under said executions sold the same to satisfy said judgments. After the sale of the property the plaintiff herein brought this action, claiming that he was the absolute owner thereof at the time of the levy of the writs of attachment, and claiming damages jointly of the said Wheeler and attachment creditors for the alleged wrongful seizure and conversion of the property. Issue was taken upon the allegations of the petition. Among other allegations of the answer of Wheeler it was averred that the plaintiff at no time before the commencement of this suit gave any notice, in writing, to said defendant that he had any interest in the property. There was a trial by jury. A verdict was returned for the plaintiff. The court, on its own motion, set aside the verdict and directed the jury to find a verdict for the defendant, which was done. A motion to set aside the last verdict was overruled, and judgment was entered for the defendants for costs. Plaintiff appeals.Kirke W. Wheeler, for appellant.

Merrell & Howatt and Cotton & Wolf, for appellees.

ROTHROCK, J.

1. The court, at the request of the defendants, instructed the jury as follows: “You are instructed that, unless it is shown by the evidence that plaintiff, Allen, by himself, his agent, or attorney, before this suit was commenced, served or caused to be served upon the defendant Wheeler, as constable, notice in writing that the said Allen owned said property, the plaintiff cannot recover, and your verdict should be for the defendants.” There was no evidence tending to show that any written notice whatever had been served, but on the contrary the evidence affirmatively showed that no such notice was served. The court, it is said, set aside the verdict because it was plainly against and contrary to the foregoing instruction, and also to another instruction upon the same point. Appellant excepted to these instructions when given, and as he appeals, and insists that the instructions were erroneous, it is necessary that we should determine their correctness. Section 3055 of the Code provides that an officer who levies an execution on personal property shall be protected from all liability to third persons, unless written notice be given to him of the claim of such third person to the property. We have several times held that under the provisions of this statute an action cannot be maintained against an officer holding property under an execution without the required written notice having been given, and that it is necessary to allege the giving of such notice in the petition. Kaeter v. Pease, 42 Iowa, 488;Finch v. Hollinger, 43 Iowa, 598;Peterson v. Erpiset, 48 Iowa, 262;Gray v. Parker, 49 Iowa, 624.

In Wadsworth v. Walliker, 45 Iowa, 395, it was held that section 3055 related exclusively to the levy of an execution, and has no application to a levy by attachment. Counsel for appellant insists that, as the property in controversy was originally seized and levied upon by virtue of writs of attachment, the statute has no application. But this action is not brought for the mere seizure of the property and its detention for the few days intervening between the...