Bradley v. Miller

• Decision Date: 10 December 1896
• Citation: 69 N.W. 426,100 Iowa 169
• Parties: BRADLEY v. MILLER, SHERIFF, ET AL.
• Court: Iowa Supreme Court

100 Iowa 169

69 N.W. 426

BRADLEY

v.MILLER, SHERIFF, ET AL.

Supreme Court of Iowa.

Dec. 10, 1896.

Appeal from district court, Calhoun county; Z. A. Church, Judge.

Action at law for the conversion of certain property alleged to belong to plaintiff. The court sustained a demurrer to the plaintiff's petition, and plaintiff appeals. Reversed.M. R. McCrary and Brown McCrary, for appellant.

Stevenson & Lavender, for appellees.

DEEMER, J.

The petition alleges that the plaintiff is the owner of certain personal property, which she claims the defendant sheriff, by direction of his co-defendant, willfully, unlawfully, and maliciously seized, under a writ of attachment issued against one W. Bradley, and which they still retain, and have converted to their own use; that she gave notice to Miller of her ownership of the property, as by statute required, before bringing suit; but that he refused to release the same; and she asks actual and exemplary damages. To the petition is attached a copy of the notice which plaintiff claims she served upon the sheriff. This notice merely recites that plaintiff is the owner of the property levied upon; that defendants were notified before the levy that plaintiff owned the property; and that Wallace knew all about the ownership before the levy was made. To this petition defendants filed two demurrers. The first one was withdrawn by permission of the court before the second was filed, and the ruling of the court was upon the second demurrer. The grounds of this demurrer are that the notice served upon the sheriff is not sufficient under the statute, and for that reason defendants are not liable for converting the property. This demurrer was sustained, and the appeal involves the correctness of the ruling.

The statute having reference to the case is as follows: “An officer is bound to levy an attachment 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. But if after such levy he shall receive notice in writing under oath from some other person, his agent, or attorney, that such property belongs to him, and stating the nature of his interest, and the facts showing how he acquired such interest, and for what consideration, such officer may release the property unless a bond be given as provided in the next section. But such officer shall be protected from all liability by reason of such levy, until he receives such written notice.” McClain's Code, § 4195. It will be observed that the notice given the sheriff in this case does not meet the requirements of the statute, in this: (1) It does not state how plaintiff acquired her interest in the property. (2) It does not give the consideration she paid. The notice is so defective that no action will lie against the sheriff for serving the writ. It is insisted, however, that the defendant Wallace is responsible for his trespass and subsequent conversion of the property, no matter whether notice was given or not. A determination of this question necessitates careful examination of the petition, which we may observe is somewhat peculiar. It charges that the defendant Miller, at the instance and by direction and order of defendant Wallace, willfully and maliciously seized the plaintiff's property, about November 24, 1894, and has since retained and converted the same to his own use, well knowing that the property belonged to the plaintiff. This action was apparently brought as at common law for the...