Constitutional Law - Due Process - Iowa Harmless Error Rule Denies Remedy for Deprivation of Property Contrary to Fuentes v. Shevin - Thorp Credit, inc. v. Barr, 200 N. W.2d 535 (Iowa 1972)
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Authors
Drummy, William W. III
Issue Date
1973
Volume
6
Issue
Type
Journal Article
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Abstract
INTRODUCTION|Due to the recent decision in Fuentes v. Shevin wherein the United States Supreme Court declared the Florida prejudgment replevin statute unconstitutional for want of adequate notice and an opportunity for a hearing prior to the seizure of property, such statutes of various jurisdictions have been challenged. The Supreme Court of Iowa was faced with this question in Thorp Credit, Inc. v. Barr., The Florida and Iowa statutes were in all material respects identical. Both permitted a private party, without a hearing or prior notice to the other party, to obtain a writ of replevin and have property seized. In Thorp, the defendant, Barr, and his wife had entered into a security agreement with Thorp Credit, Inc., under which certain personal property was to secure a loan from the lending institution. Upon default, Thorp instituted an action of replevin, obtained a writ, and had the sheriff seize the property. The District Court of Dallas County upheld the constitutionality of the statute and entered judgment for Thorp Credit. An appeal was taken to the Supreme Court of Iowa. In considering the constitutionality of the statute the Iowa Supreme court was bound by the Fuentes decision. However, unlike the court in Fuentes, the Iowa court failed to remand the case to the trial court but rather entered final judgment for Thorp Credit, Inc.|his affirmation of the lower court's decision with respect to ultimate possessory rights to the property differs from Fuentes in more than mere form and will be the topic of this article. The analysis will first focus on the Fuentes doctrine of procedural due process and how it evolved...
Description
Citation
6 Creighton L. Rev. 410 (1972-1973)
Publisher
Creighton University School of Law