Ramsden v. Wilson

Beck, J. I. The petition alleges that plaintiff is the absolute owner of the property in question, and that it was not [212] taken upon the order or judgment of any court against him. It shows the cause of detention to be the seizure of the property by the sheriff, upon an attachment issued by the Circuit Court of Tama county against one Johnson, at the suit of defendant in this casé. The defendant demurred to the petition on the ground that, as the property was seized upon process issued by the Circuit Court, and does not show that it was exempt from levy, the District Court has no jurisdiction in the case. The demurrer was sustained. 1. Replevin: property held by officer: jurisdiction.; II. The owner of property, having the right to the possession thereof, may take it by replevin from an officer seizing it upon Proeess issued against a third party as his property. Smith v. Montgomery, 5 Iowa, 370; Gimble v. Ackley, 12 Iowa, 27; Shea v. Watkins, Id., 605; Cooley v. Davis, 34 Iowa, 128. The demurrer, which assails the petition on the ground that the District Court wanted jurisdiction, because the property was in the custody of the defendant under process issued by the Circuit Court, is not well taken. The writ from the Circuit Court authorized the seizure of no property except, that owned by the person against whom it ran. The officer was not protected by the writ in the seizure of plaintiff’s property. III. The defendant, though making by the demurrer the point above disposed of, does not seem to rely upon it in this court. Here he relies upon the fact that the petition does not show that Johnson did not own the property when it was seized, and that it fails to show the written notice required by Code, § 3055, was served upon the sheriff holding the execution. But these questions are not raised by the demurrer, and were not presented to and passed upon by the court below. Under familiar rules of this court they cannot be first made here. In our opinion the District Court erred in sustaining the demurrer of defendant to the petition. REVERSED.