
    Enfield v. Blyler et al.
    1. Constable: execution sale without notice: action for damases: code, § 3081. The penalty provided by § 3081 of the Code, for selling property on execution without giving the notice prescribed by § 3080, cannot be recovered where no actual damage has accrued. (Coffey v. Wilson, 65 Iowa, 270.) And where action was begun for damages and penalty, but the claim for damages was withdrawn, a judgment for the penalty was without warrant, and must be reversed.
    
      Appeal from Polla Circuit Court.
    
    Friday, October 23.
    This is an action to recover damages and the statutory-penalty upon the official bond of a constable for selling certain personal property of the plaintiff on execution without giving the notice of sale required by law. There was a trial to the court without a jury, and a judgment was rendered for the plaintiff. Defendants appeal.
    
      L. C. Bannister, for appellants.
    
      D. O. Pinch and D. Donovan, for appellee.
   Rothrock, J.

It is provided by section 3081 of the Code that an officer selling property on execution without the notice prescribed by section 3080 “ shall forfeit one hundred dollars to the defendant in execution, in addition to the actual damages sustained by either party. * * *

It appears from the finding of facts in this case that the plaintiff withdrew on the trial all claim for damages, and only sought to recover the statutory penalty of one liundred dollars.” The judgment rendered was for the forfeiture only. In the case of Coffey v. Wilson, 65 Iowa, 270, it was held by this court that the penalty of $100 - could not be recovered where there was no actual damages suffered by the defendant in execution by reason of the failure of the officer to give notice of the sale. That case seems to be decisive of the case at bar. It is true that in this case the plaintiff claimed actual damages in his petition. But he withdrew that claim on the trial. The court was therefore authorized in finding that he had sustained no actual damages, the same as if he had made no such-claim in his petition. It is not a case where the law will presume damages in the absence of any claim therefor.

Be versed.  