liable, shall, if requested by the officer, show property of the party liable before him so as to entitle himself to the benefit of this provision. liability. SEC. 3042. But all the parties will be considered as equally Judgment reliable in all cases, unless the order of liability is shown to the court cite order of and recited in the judgment, and the clerk issuing execution on R. ¿ 3261. the judgment containing such recital shall state the order of liability in the execution. LEVY. of officer. R. 2 3262. SEC. 3043. When an execution is delivered to an officer, he Mode of: duty must proceed to execute the same with diligence; if executed, an exact description of the property at length, with the date of the levy, shall be endorsed upon or appended to the execution, and if the writ was not executed, or only executed in part, the reason in such case must be stated in the return. No notice of a levy need be given | precision and certainty in the descripto the execution defendant: Ayers v. tion of the property taken, and a sale Campbell, 9-213. thereunder, held void: Payne v. Levy held, insufficient for want of Billingham, 10–360. SEC. 3044. C. '51, 1904. The officer must execute the writ by levying on the same. property of the judgment debtor, collecting the things in action R. 3267. by suit in his own name, if necessary, or by selling the same, selling the other property and paying to the plaintiff the proceeds, or so much thereof as will satisfy the execution. of the debt, and that a subsequent re- Judgments were not subject to levy, until a statutory provision to that effect was made. See § 3046 and notes. It seems that a levy is, as between the parties, prima facie satisfaction SEC. 3045. The officer shall in all cases select such property, What property and in such quantities, as will be likely to bring the exact amount R. 3268. required to be raised, as nearly as practicable, and having made C. 51, 2 1903. one levy, may, at any time thereafter, make other levies if he deem it necessary. But no writ of execution shall be a lien on personal property before the actual levy thereof. Where the levy is excessive, the sale | keeping possession of it, held, not will be set aside, even though the sufficient to create a lien; Techmeyer whole property sold had been previ- v. Waltz, 49–645. ously attached in the same action: Cook v. Jenkins, 30-452. Merely noting the fact of levy upon personal property without taking and SEC. 3046. The last sentence of the section merely declares the law as it existed before its incorporation. See Reeves v. S bern, 16-234. he shall take. 9 G. A. ch. 174, 10. bank bills, R. 3272. Judgments, bank bills, and other things in action, Judgments, may be levied upon and sold, or appropriated as hereinafter pro- things in vided, and assignment thereof by the officer shall have the same action. effect as if made by the defendant. Under Rev. § 3272, which did not | levied on and sold under execution. 13 G. A. ch. 167, & 26. contain the word "judgments," it was they are debts and cannot be reached held that a judgment could not be under attachment by a levy, but only levied on and sold as property, but by garnishment under § 2967, ¶ 4: that garnishment of the judgment Ochiltree v. M. I. & N. R. Co., 49debtor was the proper remedy: Os-150 born v. Cloud. 23-104; and alt.ough Negotiable notes may be taken and under this section judgments may be endorsed, and the endorsement will Persons in debted to de- C. '51, 1894. Public prop erty not liable. R. 23274. C. '51, 1895. Tax levied to pay corporate R. 3275. 13 G. A. ch. 43. transfer the note, discharged of in- The word "defendant" will apply to The interest of a mortgagor in personal property, which is in the possession of the mortgagee, is not a "thing in action," such that it can be levied on under execution: Campbell v. Leonard, 11-489. Held, that bonds of a railroad company which had been negotiated and afterwards bought back by it, but not delivered, might be levied on under execution against the company: Hetherington v. Hayden, 11-335. SEC. 3047: After the rendition of judgment, any person indebted to the defendant in execution may pay to the sheriff the amount of such indebtedness, or so much thereof as is necessary to satisfy the execution, and the sheriff's receipt shall be a suificient discharge therefor. [The printed code has the word "sheriff" following "necessary," in the third line, which is not in the original.] SEC. 3048. Public buildings owned by the state, or any county, city, school district, or other municipal corporation, or any other public property which is necessary and proper for carrying out the general purpose for which such corporation is organized, are exempt from execution. The property of a private citizen can in no case be levied on to pay the debt of any such. Public buildings, being exempt from execution, a judgment against a county or city owning them is not a lien thereon (§ 282 and notes): The City of Davenport v. The Peoria M. & F. Ins. Co., 17-276. A mechanic's lien cannot be enforced against such buildings, etc., as are here exempt from execution: Loring v. Small, 50-271; Lewis v Chickasaw Co., 50-234; Charnock v. Dist. T'p, etc., 51-70. SEC. 3049. If no property of a municipal corporation against which execution has issued can be found, or if the judgment creditor elect not to issue execution against such corporation, a tax must be levied as early as practicable to pay off the judgment. When a tax has been so levied and any part thereof shall be cɔllected, the treasurer of such corporation shall pay the same to the judgment creditor, or to the clerk of the court in which the judgment was rendered, in satisfaction thereof. Under the Revision it was held that | this section did not confer any power to tax where such power was not otherwise granted: Clark v. City of Davenport, 14-494; and that a tax could not be levied in excess of the limits imposed by § 796 (Rev. § 710): Iowa R. Land Co. v. Sac Co., 59-124, 13, and cases cited. (Referred to with approval in Jeffries v Lawrence, 42-498. 505, a case decided under the present code.) This tax may be in addition to the taxes provided by §§ 496-498, and the limit there fixed on the amount of tax does not apply in such case: Rice v. Walker, 44-458. The provisions of this section are applicable to a school district, and mandamus may be brought against its officers to compel the levy of a tax as here provided: Boynton v. District Tp of Newton, 34-510; Stevenson v. District T'p of Summit, 35–462, 471. The levy of a tax to pay off the judgment may be enforced by mandamus, and the order may dir et that if the amount which may be legacy levied is not sufficient, similar taxes shall be levied for that purpose for subsequent years; Coy v. City Council of Lyons, 17-1. Where a tax has been levied and. collected, as here provided, an act on of mandamus will lie to compel the treasurer to pay it over to the creditor: Brown v. Crego, 32–498. The judgment creditor has a right to require that the levy and colle-tion be made, and a sufficient amount thereof set apart for the payment of his debt: The State ex. rel., etc., v. City of Davenport, 12-335 upon. SEC. 3050. Stock or interests owned by the defendant in any Stocks or intercorporation, and also debts due him, and property of his in the ts levied hands of third persons, may be levied upon in the same manner R3269. provided for attaching the same. Judgments owned by defendant, | execution without garnishment. See although debts, may, by express pro- § 3016, and notes. vision, be levied on and sold under C. '51, 1892. PROCEEDINGS BY GARNISHMENT. . 3270. SEC. 3051. In proceedings by garnishment on execution, the How done: garnishee shall be served as in case of attachment. The plaintiff proceedings. may, also, if the garnishee is called into court, have a case docketed against him without docket fee, and upon his answer to the officer, issue may be made and notice thereof given him, or issue may be made on his answer in court without any notice thereon, if made at the same term; and in all these and every other particular, the proceedings shall be the same as under garnishment on attachment, as near as the nature of the case will allow. If issue is not taken upon the an- is filed, the garnishee is entitled to swer of the garnishee at the term it notice: Kienne v. Anderson, 13-565. execution. SEC. 3052. Proceedings by garnishment on execution shall not Not affected by be in any manner affected by the expiration of the execution or expiration of its return; and where parties thereunder have been garnished, the R. 32.1. officer shall return to the next term thereafter a copy of the execution with all his doings thereon, so far as the garnishments thereon are concerned. JOINT OR PARTNERSHIP PROPERTY. sion, inventory R. 3.87. SEC. 3053. When an officer has an execution against a person Officer may who owns property jointly, in common, or in partnership with take posses another, such officer may levy on and take possession of the prop- and appraise. erty owned jointly, in common, or in partnership, sufficient y to . 31, 1917. enable him to appraise and inventory the same, an for that purpose shall call to his assistance three disinterested persons, which inventory and appraisement shall be returned by the officer with the execution, and shall state in his return who claims to own the property. SEC. 3054. The plaintiff shall, from the time such property is Lien enforced so levied on, have a lien on the interest of the defendant threin, by equitable proceeding. and may commence an action by equitable proceedings to ascer- R. 23289–91. tain the nature and extent of such interest and to enforce the lien; and, if deemed necessary or proper, the court or judge may appoint a receiver under the circumstances provided in chapter twelve of title seventeen of this code. The interest of a partner in partnership property is liable to execution. Such execution should be levied thereon, and will remain a lien until satisfied by sale or otherwise. The equitable proceedings here contemplated simply pertain to the method of enforcing the liability of the property to the writ: Lambert v. Powers, 36 18. These provisions simply provide a manner for ascertaining the interest of the debtor partner in the partnership prop rty, and for enforcing the creditor's remedy against such interest. The interest and claims of copartners and firm-creditors, in and to the firm property, must be considered in determining the interest of the debtor. To this end such partners and Terms and R. 3277. creditors may be made parties, and settled and wound up: Richard v. Haines, 30–574. INDEMNIFYING BOND. SEC. 3055. An officer is bound to levy an execution on any personal property in the possession of, or that he has reason to believe belongs to the defendant, or on which the plaintiff directs him to levy, unless he has received notice in writing from some other person, his agent, or attorney, that such property belongs to him; or, if after levy he receives such notice, such officer may release the property unless a bond is given as provided in the next section; but the officer shall be protected from all liability by reason of such levy until he receives such written notice. The officer is bound to levy as herein | ing a replevin suit for the property provided, and is not liable in any way levied on, in which he is successful: by reason of such levy, until he receive Rickabaugh v. Bada, 50–56. the notice provided for. He cannot This section has no application to demand from plaintiff an indemnity-a case where a debtor claims property ing bond until such notice is served. The remedies by interpleader, provided for in § § 2572-2575, is merely cumulative: Kaster v. Pease, 42-488. In the absence of the notice here provided. replevin will not lie against the sheriff for property levied on: Finch v. Hollinger, 43-598; Peterson v. Espeset, 48-262. as exempt: McCoy v. Cor ell, 40– 457; nor to levies under attachment. The bond here provided for is not authorized in such case: Wadsworth v. Walliker, 45–395. The written notice provided for, Laust be delivered to the officer. It is not sufficient to simply read it to him: Gray v. Parker, 49–624. Service of the written notice here contemplated upon the deputy sheriff who made the levy, held sufficient: Burrows v. Waddell, 52–195. Although the officer is to be protected from all liability by reason of the levy until notice is received, he cannot maintain an action for expenses and attorney's fees in defendSEC. 3056. When the officer receives such notice he may forthwith give the plaintiff, his agent, or attorney, notice that an conditions of indemnifying bond is required. Bond may thereupon be given by or for the plaintiff, with one or more sufficient suleties, to be approved by the officer, to the effect that the ob! gors will indemnify him against the damages which he may sustain in consequence of the seizure or sale of the property, and will pay to any cla mant thereof the damages he may sustain in consequence of the seizure or sale, and will warrant to any purchaser of the property such estate or interest therein as is sold; and thereupon the officer shall proceed to subject the property to the execution, and shall return the indemnifying bond to the district court of the county in which the levy is made. If not given Officer protected if bond good when taken. R. 3279. SEC. 3057. If such bond is not given, the officer may refuse to levy, or if he has done so, and the bond is not given in a reasonable time after it is required by the officer, he may restore the property to the person from whose possession it was taken, and the levy shall stand discharged. SEC. 3058. The claimant or purchaser of any property, for the seizure or sale of which an idemnifying bond has been taken and returned by the officer, shall be barred of any action against the officer levying on the property if the surety on the bond was good when it was taken. Any such claimant or purchaser may maintain an action upon the bond, and recover such damages as he may be entitled to. This section, in so far as it deprives | officer who levies thereon under an the owner of property, for the seizure execution against another, is unconand sale of which an indemnifying stitutional as depriving such owner of bond has been taken, of the right to his property without due process of maintain an action for the recovery law, and is void: Foule v. Mann, of such specific property against an 53-42. SEC. 3059. Where property, for the sale of which the ofcer Application of is indemnified, sells for more than enough to satisfy the execution proceeds of such property. under which it was taken, the surplus shall be paid into the court R. ¿ 3280. to which the indemnifying bond is directed to be returned. The court may order such disposition or payment of the money to be made, temporarily or absolutely, as may be proper in respect to the rights of the parties interested. sued by jus SEC. 3060. The provisions of the preceding sections as to Executions isbonds, shall apply to proceedings upon executions issued by tices. justices of the peace. Indemnifying bonds shall be returned in R. 3286. such cases with the execution under which they are taken. The provisions as to indemnifying | cution, and not to those under attachbond relate only to levies under exe-ment. See note to § 3055. STAY OF EXECUTION. for what time. SEC. 3061. On all judgments for the recovery of money, except How effected: those rendered in any court on an appeal or writ of error thereto, R. 3293. or against any officer, person, or corporation, or the sureties of any of them, for money received in a fiduciary capacity, or for the breach of any official duty, there may be a stay of execution if the defendant therein shall, within ten days from the entry of judgment, procure one or more sufficient freehold sureties to enter into a bond acknowledging themselves security for the defendant for the payment of the judgment, interest, and costs from the time of rendering judgment until paid, as follows: 1. If the sum for which judgment was rendered, inclusive of costs, does not exceed one hundred dollars, three months; tracted: law of 2. If such sum and costs exceed one hundred dollars, six Debts previmonths; provided, that the provisions of this chapter in relation ously conto stay of execution shall not apply to existing contracts, but such contracts shall be governed by the laws in force at the time they were made, which are as follows: When judgment has been rendered against any one for recovery of money, he may, by procuring one or more sufficient freehold securities to enter into a recognizance acknowledging themselves security for the defendant for the payment of the judgment, together with the interest and costs accrued and to accrue, have a stay of the execution from the time of rendering judgment, as follows: If the sum for which judgment was rendered, inclusive of costs, does not exceed five dollars, one month; If such sum and costs exceed five, but not twenty dollars, two months; If such sum and costs exceed twenty, but not forty dollars, three months; If such sum and costs exceed forty, but not sixty dollars, four months; |