Charles City Plow & Manuf'g Co. v. Jones

• Decision Date: 10 March 1887
• Citation: 32 N.W. 280,71 Iowa 234
• Parties: CHARLES CITY PLOW & MANUF'G CO. v. JONES AND OTHERS.
• Court: Iowa Supreme Court

71 Iowa 234

32 N.W. 280

CHARLES CITY PLOW & MANUF'G CO.

v.JONES AND OTHERS.

Supreme Court of Iowa.

March 10, 1887.

Appeal from circuit court, Floyd county.

Plaintiff brought an action against defendants on a money demand, and sued out a writ of attachment, on which certain personal property belonging to defendants was seized. There was no controversy as to plaintiff's demand, but defendants pleaded a counter-claim for damages on the attachment bond for the wrongful suing out of the attachment. On the trial, defendants recovered on the counter-claim, and plaintiff appealed.Ellis & Ellis, for appellant.

Starr & Harrison and J. C. Cook, for appellees.

REED, J.

1. The grounds on which the attachment was sued out were “that defendants are about to dispose of their property with intent to defraud their creditors, and that defendants have property or rights in action which they conceal.” On the trial a member of defendants' firm was examined as a witness on behalf of his firm, and was asked whether the firm, before the attachment was issued, was about to dispose of its property with intent to defraud its creditors, or whether there was any talk or intimation or intent on their part of doing so in the future. It was alleged, in an amended abstract filed by appellees, that these questions were not objected to, and, this allegation being denied by appellant in an additional abstract, we were required, in determining the controversy, to examine the transcript. We find, upon an examination of the bill of exceptions, that the questions were objected to on the ground of incompetency. Under the rule laid down in Selz v. Belden, 48 Iowa, 451, the objection should have been sustained.

2. The writ of attachment was directed to the sheriff of Kossuth county, and was levied on property in that county; the levy being made by the deputy-sheriff, who certified in his return that he had seized on the writ 85 plows, 2 churns, a ledger and day-book, 1 safe, 2 buggies, 5 corn-planters, and 5 horses, and had garnished certain persons as supposed debtors of the defendants. Before the writ was returned, however, all of the property except the 85 plows was released, and the fact of such release was shown by the certificate of the sheriff indorsed on the writ. The plows, when the levy was made, were situated in a building which is described in the return as the east warehouse, while the other property (except the five horses) was in the business house in which defendants carried on business. At the term at which the cause was tried, the sheriff filed what is denominated an amendment to the return, in which he certified that, when the levy was made, by direction of plaintiff, he seized and locked up both buildings in which the property was situated, and that he kept possession of the store-room or building in which defendants carried on business for one month, when he released it, and restored it to defendants, and that he continued to hold possession of the warehouse in which the plows were situated.

One of the matters complained of by defendants, and for which they claimed damages, was that they were deprived of the use of these buildings. On the trial they offered the amendment to the return in evidence, and it was admitted by the court, over the objection of plaintiff. There is no claim that the writ was levied on either of the buildings, or that the officer had any intention of seizing them. Neither is it shown by the return that it was necessary to retain possession of the store-room as a place of deposit for the articles which were in it when the levy was made and were seized by the officer. We have, therefore, no occasion to inquire whether the sheriff might occupy it as a place of deposit for the goods, to the exclusion of defendants, and without their consent. It is clear, however, that, unless he occupied it for some purpose which was connected with the execution of the writ, his act was a trespass; and it may be conceded that, if plaintiff directed him to commit the act, it is liable therefor. But whether their liability therefor would be on the attachment bond we do not determine, as that question was not raised by the objection. But it does not appear by the return that the act was committed in the execution of the writ. It appears simply that he levied on the property; and that, by direction of the plaintiff, he locked up the building, and that he retained possession of it for one month.

The sheriff is required by the statute (Code, § 3010) to return upon every attachment what he has done under it. The return should show what property was attached, and the disposition made of it, and all acts done by the officer in the execution of the writ, and his return is evidence against the parties as to the acts done by him in executing it, which are required by law to be shown by the return. But, under the ruling of the circuit court, the return was received as evidence of the locking up and retention of the building by the sheriff, and that this was done by plaintiff's direction. We are of...