Davis & Co. v. Buchanan & Bone

12 Iowa 575

• Court: Supreme Court of Iowa
• Decided: January 10, 1862
• Status: Published

Opinion

BALDWIN, C. J.

A judgment was obtained against defendants as partners.

The individual names of the partners were not set forth in the judgment, nor was there any order that an execution issue against the private property of the individual members of the firm. An execution issued thereon, and the property of Wm. Buchanan was sold under such execution, in satisfaction of the judgment. A motion to set aside this sale, being sustained, the plaintiffs appeal.

This question involves a construction of §§ 1690 and 1691, of the Code, which have been repealed by § 2785 of the Revision. A like question was presented for our determination in the case of Lewis & Bro. v. Conrad Young & Co., 11 Iowa, 153.

That case was, however, determined upon another point, and it was not considered as then necessary to determine the question now presented. Says Wrigi-it, J., in delivering the opinion of the court, “all doubt as to the proper practice in this respect under §§ 1690 and 1691 of the Code, is set at rest by the corresponding section (2785) of the Code of civil practice now in force, and the question is therefore of but little practical importance. The method pointed out now for making such property liable, is by scire facias.”

If this question was of but little practical importance when that cause was decided, it is certainly of less importance at this time, and Avithout elaboration, we are of the opinion, that under a proper construction of said §§ 1690 and 1691, the individual property of a firm should not be levied upon until such defendants have had an opportunity to show cause why such levy should not be made.

Affirmed.