Freeman v. Lind

83 N.W. 800, 112 Iowa 39

• Court: Supreme Court of Iowa
• Decided: October 6, 1900
• Status: Published

Opinion

Ladd, J.

The sole question raised on this appeal is whether a valid levy of a writ of attachment, directed by the clerk of the superior court to any constable of the county, may be made by such an officer. Section 3889 of the Code requires the writ to be directed to the sheriff, and, under section 3934, by this is meant “to constables when proceeding's are in justice court, or the like officers of any other court.” The executive officer of the superior court is the city marshal, with duties and authority corresponding with those of the sheriff in the district court, though the sheriff may servo its process. Code, section 2G6. But constables are not authorized by statute to act as officers of either the .district or superior court, and for this reason the writ was improperly' directed. That he was a county officer under bond added nothing to his powers as constable in the way of enabling him to act in a capacity not contemplated by law. Whether Croniele might have been appointed to levy the writ, in the absence of the marshal and sheriff, will not be profitable to consider, as this was not done. See Minott v. Vineyard, 11 Iowa, 90; Currens v. Ratcliffe, 9 Iowa, 309. The direction was to any person as constable, and not to a particular person. A constable has power to serve process “directed to him by lawful authority.” Oo<le, section 518. Here the direction was void, in that it was contrary to the express provision of the statute, and unlawful in running to an officer not empowered to execute the writ. In Stickney v. Stickney, 77 Iowa, 102, the party serving the writ did so as deputy sheriff, and hence with the ostensible power to act. Conceding Oronicle to have been all he claimed, he was without authority. — Affirmed.

Granger, C. J., not sitting.