Cheadle v. Guitar

• Decision Date: 23 April 1886
• Citation: 68 Iowa 680,28 N.W. 14
• Parties: CHEADLE AND ANOTHER v. GUITAR AND OTHERS.
• Court: Iowa Supreme Court

68 Iowa 680

28 N.W. 14

CHEADLE AND ANOTHER

v.GUITAR AND OTHERS.

Supreme Court of Iowa.

April 23, 1886.

Appeal from Pottawattamie circuit court.

Action to recover specific personal property which had been seized by the sheriff under and by virtue of a writ of attachment. A demurrer to the petition was sustained, and the plaintiffs appeal.G. A. Holmes and Stiles & Beaman, for appellants, Cheadle and another.

Wright, Baldwin & Haldane, for appellees, Theodore Guitar and others.

SEEVERS, J.

The ground of the demurrer, which was sustained, is as follows: The “petition does not show that prior to the commencement of this action plaintiff had served upon the defendant the notice and proof of ownership required by law.” The statute upon which the ruling of the court, without doubt, was based, is as follows: “An officer is bound to levy an attachment on any personal property in 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 a 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 is given as provided in the next section. But such officer shall be protected from liability by reason of such levy until he receives such written notice.” Chapter 45, Laws 1884, Miller's Code, 739.

It is objected that the statute is unconstitutional, because it conflicts with sections 1, 8, and 9 of the constitution, for the reason that thereunder a person may be deprived of his property without due process of law. In discussing this question it must be assumed that the required notice of ownership was not given. The primary object of the statute is to compel the officer to make the levy, and protect him from liability for so doing. The right of the party to maintain an action for the recovery of the property is in no respect impaired. A person may be deprived of property by his own negligence. The lapse of time will prevent a recovery if there is a statute limiting the time within which an action may be commenced. Existing remedies may be taken away and new ones given. Cooley, Const. Lim. 351, 443, 448. Instantly upon the levy being made, the appellant could have given the required notice, and then his right of action would...