Hoag v. Madden

31 N.W. 954, 70 Iowa 612

• Court: Supreme Court of Iowa
• Decided: March 3, 1887
• Status: Published

Opinion

RotheocK, J.

The matter involved in this controversy is of exceedingly small consequence. The petition is in the nature of a bill in chancery, from which it appears that the plaintiff was indebted to the defendant the Northwestern Manufacturing & Car Company in the .amount of over $200 upon certain promissory notes. An action was commenced on the notes, and pending the action the plaintiff and the attorneys for the holders of the notes made an oral agree! ment that if plaintiff would give a chattel mortgage upon certain property to secure the payment of the debt, and pay the costs of the original notice and filing fee, the suit for the collection of the notes should be dismissed, and the time for payment of the notes extended. A mortgage was made, and placed in the hands of defendants’ attorneys to await the approval of the defendants. The arrangement was approved; and, when the costs came to be settled, the defendant’s attorneys, in addition to the filing fees and costs on original notice, demanded twenty dollars attorney’s fees as costs, This the plaintiff refused to pay. The attorneys refused to dismiss the suit on the notes, and retained the mortgage, and commenced the foreclosure‘thereof, without action, by notice and sale. Thereupon plaintiff commenced this action, claiming that the mortgage was never delivered, was without consideration, and that in the posted notices of sale of the mortgaged property the defendants were claiming more than was due, and a temporary injunction was granted restraining the foreclosure of the mortgage. The foregoing is the sub-' stance of the averments of the petition. The petition was fully answered by defendants, in which issue was taken on the matter touching the attorney’s fee costs, and averring that the defendants had none of the mortgaged property in their possession, excepting a mule valued at thirty-five dollars, and a wagon valued at twenty dollars, and that plaintiff had removed all other mortgaged property out of the county, and that a mule so removed had died. The answer, and an amendment thereto, were verified. On the fifth day of March, 3 885, the defendants filed a motion in vacation to dissolve the injunction. The motion was based upon the petition and answer and affidavits. The motion was sustained. At the June term, 1885, of the court, the defendant filed a motion, supported by affidavit, asking that plaintiff’s petition be dismissed. The motion was sustained, and the suit dismissed, on the ground that the petition doe's not state a cause of action, or entitle the plaintiff to any relief. The pleadings are set out in the abstract at great length; and the plaintiff insists that the petition does state a cause of action, and does entitle him to relief, and he claims that his petition could not, after answer, be disposed of by a mere motion.

It may be that a motion to dismiss was an irregular method of practice; but, if tbe plaintiff bad no standing in a court of equity upon tbe bill and answer, we would not reverse because of tbe manner in which tbe court disposed of tbe case. When tbe injunction was dissolved there was no obstruction in tbe way of tbe mortgage, and one ground of the motion to dismiss was that the mortgage bad been foreclosed by a sale of tbe property. If this was made to appear to tbe court, as we suppose it was by tbe affidavit filed in support of tbe motion, it must have been apparent to tbe court that tbe plaintiff was not entitled to any relief by way of an injunction. Tbe suit on the notes, so far as appears, is still pending, and the plaintiff can there contest tbe right of recovery, and show any other reason why be should not pay tbe notes; as that they are not really due, and generally that be has been wronged by tbe defendants. It is to be observed that tbe plaintiff made no objection to tbe order dissolving tbe injunction.

Affirmed.