Smith v. Montgomery

Supreme Court of Iowa

Smith v. Montgomery

5 Iowa 370

CourtSupreme Court of Iowa

DecidedDecember 22, 1857

StatusPublished

Cited by5 cases

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Bluebook

Smith v. Montgomery, 5 Iowa 370 (iowa 1857).

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Opinion

Wright, C. J.

The motion to quash, seems to have been treated by the court below, in the nature of a demurrer, and as such we shall consider it.

The Code, (section 1995), provides, that the petition in an action -of replevin, must state that the property is wrongfully detained by the defendant; that the plaintiff is entitled to the present possession thereof; and that it was not taken from him by any legal process, or if so taken, that it was exempt from seizure by such process. It must also state the alleged cause of detention, according to his best knowledge and belief, and also the value of the property. We think the petition-in this case, complies substantially with this provision in the Code. It is true that it is not, in all respects, as artificially drawn as it might have been, nor does it follow, in all its formal parts, the form given by the Code, section 2518. But this form need not be strictly followed. A petition equivalent thereto, is sufficient. JBusíoh v. Burnm, 3 Iowa, 63, As we understand this petition, the }:>laintiff does clearly and distinctly claim the possession of the property therein named, and one thousand dollars for the wrongful detention thereof. Taking the first part of the petition, disconnected from what follows, and it might be treated as a claim for the one thousand dollars, as and for a debt or sum of money due the plaintiff. But when taken in connection with the concluding part of the petition, the meaning is obvious, and the only fair construction to be given to the whole language, is the one above indicated.

The second ground of demurrer, it is presumed, is laid upon the idea that if the property is in the hands of an officer, by virtue of a legal process, the plaintiff cannot replevy the same, unless it is shown to have been exempted property, under sections 1898-9 of the Code. But this is not the meaning of the words, “or if so taken, it was exempt from seizure by such process,” as used in section 1995. If the property of A. is taken upon attachment, or under execution, against the property of B., it is [373]*373exempt from such, seizure, and A. may bring replevin. Miller v. Bryan, 3 Iowa, 58.

Judgment reversed.

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Wright, C. J.

The motion to quash, seems to have been treated by the court below, in the nature of a demurrer, and as such we shall consider it.

The Code, (section 1995), provides, that the petition in an action -of replevin, must state that the property is wrongfully detained by the defendant; that the plaintiff is entitled to the present possession thereof; and that it was not taken from him by any legal process, or if so taken, that it was exempt from seizure by such process. It must also state the alleged cause of detention, according to his best knowledge and belief, and also the value of the property. We think the petition-in this case, complies substantially with this provision in the Code. It is true that it is not, in all respects, as artificially drawn as it might have been, nor does it follow, in all its formal parts, the form given by the Code, section 2518. But this form need not be strictly followed. A petition equivalent thereto, is sufficient. JBusíoh v. Burnm, 3 Iowa, 63, As we understand this petition, the }:>laintiff does clearly and distinctly claim the possession of the property therein named, and one thousand dollars for the wrongful detention thereof. Taking the first part of the petition, disconnected from what follows, and it might be treated as a claim for the one thousand dollars, as and for a debt or sum of money due the plaintiff. But when taken in connection with the concluding part of the petition, the meaning is obvious, and the only fair construction to be given to the whole language, is the one above indicated.

The second ground of demurrer, it is presumed, is laid upon the idea that if the property is in the hands of an officer, by virtue of a legal process, the plaintiff cannot replevy the same, unless it is shown to have been exempted property, under sections 1898-9 of the Code. But this is not the meaning of the words, “or if so taken, it was exempt from seizure by such process,” as used in section 1995. If the property of A. is taken upon attachment, or under execution, against the property of B., it is [373]*373exempt from such, seizure, and A. may bring replevin. Miller v. Bryan, 3 Iowa, 58.

Judgment reversed.

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5 Iowa 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-montgomery-iowa-1857.

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