Hanschild v. Stafford

27 Iowa 301

• Court: Supreme Court of Iowa
• Decided: June 18, 1869
• Status: Published

Opinion

Cole, J.

The motion in this case is grounded upon the Revision, “ Sec. 3540 (1992). If, by the decision of the Supreme Court, the appellant becomes entitled to a restoration of any part of the money or property that was taken from him by means of such judgment or order, either the Supreme or District Court may direct execution or writ of restitution to issue, for the purpose of restoring to such appellant his property or value thereof.”

This section was designed to afford a cumulative and summary remedy, as against his adversary, to a successful appellant who had been either unwilling or unable to execute the necessary supersedeas bond for the stay of proceedings upon the judgment or order appealed from. Where the property, taken by means -of the judgment, and of which restoration is sought, has, by voluntary sale, or by seizure and sale under process, against the successful party, or otherwise, passed to an innocent purchaser ; or, where the money so taken was recovered and held in a fiduciary capacity, and in the proper and bona fide discharge of such fiduciary duty, pursuant to an order of court, has been paid over to another, the summary remedy designed by this section cannot properly be administered. In such cases the party must be limited to his remedy by that proceeding wherein he can have all necessary parties brought before the court, and the rights of all adequately protected, while the full measure of relief is granted him. Polk County v. Sypher, 17 Iowa, 358. Without- prejudice to defendant’s rights in such proceeding, the judgment of the District Court is

Affirmed.