Morgan v. Zenor

• Decision Date: 16 May 1893
• Citation: 55 N.W. 197,88 Iowa 175
• Parties: MORGAN v. ZENOR.
• Court: Iowa Supreme Court

88 Iowa 175

55 N.W. 197

MORGAN

v.ZENOR.

Supreme Court of Iowa.

May 16, 1893.

Appeal from district court, Dallas county; J. H. Applegate, Judge.

Action to recover possession of personal property. Defendant demurred to plaintiff's petition, and, the demurrer being sustained, and plaintiff electing to stand on his petition, judgment was entered against him, from which he appeals.John Shortley, for appellant.

Alford & Gates, for appellee.

GIVEN, J.

1. Plaintiff, after alleging in his petition that he is the absolute and unqualified owner of the personal property described, and that the defendant sheriff wrongfully detains possession of said property from him, alleges as follows: “That said property was taken from this plaintiff by the defendant sheriff under a pretended execution issued out of the office of the clerk of the district court of the state of Iowa in and for Black Hawk county on a pretended judgment in favor of Jansen, McClurg & Co., and against this plaintiff, but plaintiff alleges that said judgment is absolutely void, for the reason that there never was any original notice, either actual or constructive, served upon or given to this plaintiff in the said cause, and the same was rendered wholly without jurisdiction. Said execution is likewise wholly null and void, and in no manner authorizes the seizure of said property by the said defendant sheriff. That the plaintiff has notified the defendant sheriff of the facts hereinbefore set out, and made demand for said property, but that the said defendant has refused and still refuses to give possession thereof to this plaintiff. That the alleged cause of detention, according to the best belief of plaintiff, is by virtue of said void and fraudulent execution. That the plaintiff has sustained damages by reason of the said wrongful detention in the sum of one hundred dollars, no part of which has been paid.” Defendant demurred upon the following grounds: “First. The petition does not aver that the property seized and levied upon by the defendant herein, upon the execution held by him issued out of a district court of Black Hawk county, Iowa, was exempt from execution, but, on the contrary, shows that such property was subject to execution,and subject to be levied upon by the defendant upon said execution. Second. The petition shows that it was taken on account of an execution issued out of the district court of Black Hawk county, Iowa, on a judgment in favor of Jansen, McClurg & Co. versus the plaintiff herein, and the plaintiff has no legal right to replevy property seized upon execution issued out of a court of record of this state against himself, unless said property is exempt from execution.” It will be observed that it is not alleged that the court rendering the judgment did not have jurisdiction of the subject-matter, nor that the execution was informal or irregular on its face, or that the property was exempt from seizure. This action is based upon the allegation that there was no service of an original notice upon this plaintiff in that...