Davis v. Gambert
| Decision Date | 08 December 1881 |
| Citation | 10 N.W. 658,57 Iowa 239 |
| Parties | DAVIS v. GAMBERT |
| Court | Iowa Supreme Court |
Appeal from Linn Circuit Court.
ACTION in replevin. A demurrer to the petition was sustained and judgment was rendered for defendant. Plaintiff appeals.
REVERSED.
George W. Wilson, for appellant.
James D. Giffin, for appellee.
I.
The petition alleges that plaintiff is the absolute owner of certain personal property which is wrongfully detained by defendant, who being a sheriff, seized and holds it upon a writ of replevin, issued in an action brought by one Daniels against Wilson; that when seized by defendant the property was in the possession of plaintiff, who before had acquired the title thereto, and the possession was neither directly nor indirectly derived from Wilson. It is alleged that the property was not taken by defendant on the order or judgment of a court against the plaintiff nor under an attachment or execution against her or against the property.
The defendant demurred to the petition on the ground that it shows the property was held by defendant upon a writ of replevin, and was therefore in the custody of the law. The demurrer was sustained. This ruling presents the only question in the case.
II. The action which is denominated by the profession replevin, is, in this State, wholly provided for by statute which prescribes in what cases it shall be prosecuted and the proceedings therein. We can gain no aid in the solution of the question before us by the application of the rules pertaining to the action at common law. We will proceed to consider the statute relating to the action and inquire whether the remedy is denied to the owner of personal property, when it is held by an officer upon a writ of replevin issued in a case wherein the plaintiff is not a party.
Under our statute the action is provided to recover specific personal property, and damages for its detention. The petition must show that the property "was neither taken on the order or judgment of a court against" the plaintiff, "nor under an execution or judgment against him or against the property." But if it was taken by either of these modes, then it must state the facts constituting an exemption from seizure by such process." Code, § 3225, par. 4. An officer seizing property on execution is protected from an action to recover the same unless written notice of the ownership be served upon him. Code, § 3055. The statute imposes no other restrictions upon the remedy by replevin. Personal property held upon execution or attachment, if these provisions be complied with, may be recovered in an action of replevin. We need not cite the numerous cases supporting this position. The action we think, may be maintained when the personal chattels are held upon a writ of replevin in a case to which the plaintiff is not a party. An officer with a writ of...
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