Frazier v. Hill , 123 Iowa 116 ( 1904 )

Ladd, J.

Crary Bros, recovered judgment against John Goodwin and wife in Boone county for $48.49, and $8.05 costs. Execution was issued thereon to the sheriff of Cherokee county, and by him levied on four colts. The plaintiff, claiming to have purchased these prior to the levy, prepared a notice to that effect, but, instead of delivering it to the deputy sheriff making the levy, served it “’by reading the same to him and delivering to him a copy of the same.” As the property was not surrendered, this action in replevin was begun. When plaintiff had introduced her evidence, tue court directed a verdict fixing the value of the colts at $175.

Section 3991 of the Code protects the officer from all liability “unless he has received notice in writing under oath from some other person, his agent or attorney that such property belongs to him; stating the nature of his interests therein, how and from whom he acquired the same and consideration paid therefor.” The manner of receiving tiiis notice is immaterial. Turner v. Younker, 76 Iowa, 258; Peterman v. Jones, 94 Iowa, 591; Murray v. Thiessen, 114 Iowa, 657. It is enough if the officer making the levy actually receives it. But we have held it not sufficient to merely read the notice to him, as it is for his use in demanding an indemnifying bond from the plaintiff and for preservation as proof. Gray v. Parker, 49 Iowa, 624; Gray v. Parker, 53 Iowa, 505. In the last opinion the court, said: “The written notice, when given, becomes in the hands of the officer his justification in demanding bond for indemnity, and, in case the bond is not given, Ms justification in refusing to levy, or in releasing the levy' if he has already made one.” To be of efficacy for these purposes, the notice under oath, and not the copy, is necessary, and for this reason the receipt by the officer of the notice itself is exacted as a condition precedent to his liability.

II. The defect in the service was not waived, for the return of service was not made part of the petition, as in Linden v. Green, 81 Iowa, 365, and, besides, the statute has been changed since that decision, as appears from Pierson v. Ind. Dist. of Hawarden, 106 Iowa, 695.

III. Judgment ivas entered for the return of the property or its value. In a motion to vacate and modify this judgment plaintiff insisted that it should have been in abatement. But no plea in abatement was interposed, and the judgment was in accordance with section 4176 of the Code, save that the value of defendant’s right .was not stated. No exception, however, is taken to this omission.

Another ground of the motion was that a delivery bond had been received by defendant, and that this fact had been concealed. But the sheriff was under no obligation to advise the plaintiff that such a bond had been tendered. Moreover, the acceptance of an indemnifying bond was not an issue in the case, as waiver of notice was not pleaded. Murray v. Thiessen, 114 Iowa, 657.—Affirmed.