Deforest v. Swan

4 Greene 357

• Court: Supreme Court of Iowa
• Decided: July 1, 1854
• Status: Published

Opinion

Opinion by

Greene, J.

An action of trespass by 0. J. Swan against G. E. Deforest, for taking and carrying away goods. Defendant answered that he took the same as sheriff of Johnson county, by virtue of a writ of attachment, a copy of which he annexed to his answer. To this answer plaintiff demurred, and the court sustained the demurrer to so much of the answer as justified under the writ of attachment. Plaintiff recovered judgment* It is now contended that the court erred in sustaining the demurrer to this answer as amended. There appears to have been no exceptions taken to this ruling on the trial below, and consequently the objection should not now ho entertained. But as counsel for appellee appears to waive this want of exception, we will decide the point presented. The writ of attachment under which defendant sought to justify, is so grossly deficient in substance, so entirely wanting in the essential elements of such a writ, that it could confer no authority upon an officer to take property. It does not state the cause of action, nor the name of the plaintiff, nor the facts and circumstances by which it was authorized. It is prima facie void, and could confer no power npon the officer.

Win. Penn Clarice, for appellant. J. D Templin, for appellee.

It follows, therefore, ’¿that the court below ruled correctly.

Judgment affirmed.