Brace v. Grady

36 Iowa 352

• Court: Supreme Court of Iowa
• Decided: April 23, 1873
• Status: Published

Opinion

Peck, Oh. J.

— I. Without determining that the petition is not sufficient to authorize an attachment enforcing the landlord’s lien under chapter 99 of the Revision, we are of the opinion that it is sufficient to support an action under chapter 12é. Under the last-named chapter, attachments may be issiied “ previous to the time when the debt becomes due, when nothing but time is wanting to fix an absolute indebtedness, and when the petition, in addition to that fact, states that the defendant is about to dispose of his property with intent to defraud his creditors.” § 3178. The petition substantially complies with this requirement. The debt described in the petition was due at the time judgment was rendered upon the demurrer; the judgment is therefore authorizedby sections 3179, 3180. In our opinion, the circuit court rightly held that the action was prosecuted under the general attachment law. Rev., chap. 124.

II. The facts that no bond was filed, that the writ of attachment directed the seizure of specified property, and that the relief asked in the petition is for the enforcement of the landlord’s lien, do not constitute objections that may be considered upon demurrer. The proceedings should have been assailed for these matters in a different manner. Rev., § 2876.

III. The court had authority to set aside its order sustaining the first demurrer upon discovering its mistake or error. The record is under the court’s control, and an entry, for a sufficient reason, máy be expunged before it is signed or during the term at which it is made. Rev., § 2666.

The. discovery, by the court, of an error or mistake in a former ruling is certainly good cause for setting aside or expunging the record thereof.

In our opinion the record before us discloses no error.

Affirmed.