Foss v. Isett

4 Greene 76

• Court: Supreme Court of Iowa
• Decided: June 15, 1853
• Status: Published

Opinion

Opinion by

Kinney, J.

Isett sued Foss in attachment.' On the first appearance of the defendant he moved to quash the proceedings in attachment, for the reason among others, that the paper purporting to he a writ was not under seal. Thereupon the plaintiff moved the court "to amend, which was granted, and the motion of defendant overruled. This was error. Before the property of the defendant could he seized, it was indispensable that the plaintiff' should obtain a writ. A paper issued by the clerk in the form of a writ is no writ, unless it has impressed upon it the seal of the court from whence it issues. Without this seal it is no more for the purpose of a writ than blank paper. Could it be amended? Not at all; for there is nothing to amend. It lacks the essential ingredient of a writ, and is not amendable.

8. Whicker and J. Battler, for appellant. - J. Scott Rickman, for appellee.

It is the seal — other things being right, — which makes it a writ, gives it force, efficacy and life. Hie property which had been seized upon this void paper could not be held in custody, upon a writ issued, after it was attached, which would be the case if the seal could be subsequently affixed.

The numerous authorities cited by the counsel for appellee are not applicable to the question presented by this record. Neither are the provisions of tibe Code, §§ 1158, 1159, broad enough to cover the case. This was not properly an amendment which was proposed. It was the creation of a writ. This could be done, but not so as to operate retrospectively upon any prior proceedings. With .the seal it became for the first time a writ, and the party to make it available should proceed upon it de novo.

Judgment upon the attachment reversed, but as the-attachment is merely auxiliary to the main suit, the judgment against the defendant will not be disturbed. ’ ■-