Farwell v. Tiffany , 82 Iowa 405 ( 1891 )

Givew, J.

The appellees move to dismiss this appeal because not taken within the time fixed by law. Section 3019 of the Code provides: “When an attachment has been discharged, if the plaintiff then announce his purpose to appeal from such order of discharge, he shall have two days in which to perfect his appeal, and during that time such discharge shall not operate a return of the property, nor divest any lien, if such appeal be so perfected at the end thereof.” The contention is whether this section applies to this case. The attachment was by garnishment under subdivision 4, section 2967, of. the Code. It was as effectual an attachment of the property in the hands of the garnishee as if it had been levied upon and taken into., possession. The garnishee was bound .to hold it until “dealt with according to law.” Code, sec. 2975. The answer of the garnishee showed property in its hands which it claimed under a bill of sale as security. Issues were joined on this answer by both the appellant and intervenor. The contention was as to the validity and superiority of the bill of sale over the attachment. The finding was in favor of the bill of sale and a judgment entered, which is in effect an order discharging the attachment as to that property.

The object of section 3019 is obvious. Without it, a discharge of the attachment would at once release the property, and in most cases defeat the purpose of an appeal; with it, by appealing within the time fixed, the property is held to abide th^ final result. The reasons for the rule exist with equal force in a case of attachment by garnishment as in a case of direct levy. Ryan v. Heenan, 76 Iowa, 590. By the garnishment this property wás required to be held subject to the attachment, and by the judgment the attachment was discharged !as to it, and the property released, unless the attachment was preserved by an appeal. The judgment or order appealed from is that discharging the attachment as to the property in the hands of the garnishee. The attachment could only be preserved from that order, and the order reviewed, by an appeal taken under section 3019. An appeal taken later would not revive the attachment. Harger v. Spofford, 44 Iowa, 369.

We think the motion must be sustained, and the appeal dismissed. •