Thorp Credit, Inc. v. Barr

200 N.W.2d 535, 1972 Iowa Sup. LEXIS 904

• Court: Supreme Court of Iowa
• Decided: September 19, 1972
• Docket: 54919
• Status: Published

Opinions

HARRIS, Justice.

This appeal challenges the procedures employed in a replevin action and attacks the constitutionality of our replevin statute. The trial court ruled any procedural defects were waived by a general appearance and found the replevin chapter constitutional. We affirm.

Elmer R. Barr and his wife Ruth, hereafter defendants, entered into a security agreement October 4, 1968 with Thorp Credit Inc., hereafter plaintiff. Plaintiff, a lending institution, had loaned a sum to defendants. The agreement securing this loan covered various items of personal property, some of which would be and some of which would not be exempt from execution under Iowa law, chapter 627, The Code. A part of the sum loaned and covered by the security agreement was actually the refinancing of prior loans. Defendants defaulted on their payments to plaintiff precipitating this action.

I. The essence of defendants’ first complaint is that original notice was not served at the time of the issuance and execution of the writ. They point to a reference in section 643.5, The Code, which requires a pledge in the replevin bond that plaintiff “ * * * will appear in court on or before the day fixed in the original notice, and prosecute his action to judgment. * * * ” Defendants have not preserved in this appeal their challenge to the bond.

Defendants have no standing to complain of the lack of original notice in this case. After the issuance of the writ they appeared in this action, moved to quash, later filed a separate motion to dismiss, filed answer, and thereafter participated at trial. We recently reviewed the effect of a general appearance as submission to the general jurisdiction of the court. Lonning v. Lonning, 199 N.W.2d 60 (Iowa 1972). Under the familiar rule explained in Lonning a general appearance is submission to the jurisdiction of the court, waiving the necessity of notice, and defects in any notice given.

II. Defendants alleged by way of affirmative defense and offered evidence at the trial to show they were on welfare and that part of the property seized was exempt from execution. Freely conceding they both signed the security agreement defendants challenged Iowa’s replevin chapter, chapter 643, The Code, claiming it does not measure up to minimum state and federal constitutional standards. They assert some preseizure hearing should be required on notice.

Any such theory would have to be described as of rather recent origin: “An express waiver of exemption rights in property may properly be contained in a mortgage thereof; (Citations) but an express waiver is not necessary, for a mortgage or pledge implies a waiver as to the particular property, (Citations) * * * ” 35 C.J.S. Exemptions § 106, page 155. See also 31 Am.Jur.2d, Exemptions, section 158, page 459. Both these authorities cite the early Iowa case of Fejavary v. Broesch, 52 Iowa 88, 2 N.W. 963.

It has long been established: “ * * * although it is the general rule that everyone is entitled to a hearing as an essential part of due process of law, a statute is not unconstitutional merely because it authorizes a ministerial act by which possession of property is taken before the right to it has been judicially determined. This is done in cases of attachment and replevin, without objection, and is a matter in the discretion of the legislative power in creating remedies.” 16 Am.Jur.2d, Constitutional Law, section 576, pages 980, 981. See also 16A C.J.S. Constitutional Law § 622, pages 820, 825.

These familiar rules have been the subject of attack in various state and federal courts beginning with Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). This attack has now culminated in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 1997-1998, 32 L.Ed.2d 556 (decided June 12, 1972) in which the United States Supreme Court struck down as invalid a Florida prejudgment seizure statute. The Florida statute disapproved was in all material respects identical to our own. See sections 643.5 and 643.6, The Code.

Fuentes held both a notice and an opportunity for a judicial hearing are required before a constitutional seizure of household goods can be effected. Contractual provisions in a purchase agreement according vendor the right to “repossess” the goods were held not to amount to a waiver. We do not hold, nor do we understand Fuentes to have held, such a waiver is impossible. However the language employed was not sufficient, under Fuentes, to effect a waiver.

We are bound under the holding in Fuentes to declare unconstitutional and invalid sections 643.5 and 643.6, The Code, for their want of notice and judicial hearing requirements prior to seizure. We are without authority to salvage these sections by prescribing such a hearing or the notice to be given therefor. Such provisions must await legislative action.

III. We are left with the question of the effect, in this case, of the unconstitutionality. After the seizure of the goods and after defendants’ motion to quash had been overruled the matter came on for trial. Testimony of defendant Barr was itself enough to establish plaintiff’s right of possession. Remand for a new trial would be idle. Where all facts are clearly established it is appropriate for us to enter final judgment even where we find error. Wilson v. Findley, 223 Iowa 1281, 275 N.W. 47; State ex rel. Weede v. Bechtel, 244 Iowa 785, 56 N.W.2d 173; Houlahan v. Brockmeier, 258 Iowa 1197, 141 N.W.2d 545, 924. See also 5 Am.Jur.2d, Appeal and Error, section 959, page 384; 5B C.J.S. Appeal and Error § 1925, page 425.

Of course we cannot allow application of an unconstitutional statute with the excuse it will or can be later corrected by showing. at trial. Persons will be protected from such seizure by the rule announced in this opinion and by the opinion of the United States Supreme Court in Fuentes which of course was rendered after the submission of this appeal to us. Failing that an appeal under rule 332, Rules of Civil Procedure, might be appropriate.

Since the final record discloses plaintiff’s right of possession the trial court must be affirmed. Preliminary error in refusing to quash the writ of replevin was harmless for purposes of this appeal.

Affirmed.

All Justices concur except RAWLINGS, MASON and LeGRAND, JJ., who dissent and McCORMICK, J., who takes no part.