Van Winkle v. Iowa Iron & Steel Fence Co.

9 N.W. 211, 56 Iowa 245

• Court: Supreme Court of Iowa
• Decided: June 11, 1881
• Status: Published

Opinion

Day, J.

a. practice premecourt: correctness of abstract. rl. The appellee in argument urges that the transcript of the record shows that no exceptions were taken to the action of the court in sustaining appellee’s motion for judgment upon the answers of gar- ** x o nishees, at the time such action was had, and that no exception was taken until the bill of exceptions was filed, more than three days after the judgment was entered. The abstract sets out what purports to be a correct copy of the judgment entry. In this entry, immediately after the rendition of judgment, is the following statement: “to which gar! hishee defendants except.” This clearly imports that the exception was taken when the judgment was rendered. The plaintiff cannot impeach the abstract by a mere statement in argument. If the abstract was deemed, incorrect, an amended abstract should have been filed by appellee.' '

II. It is insisted that the abstract does not purport to contain all the evidence. The abstract states: “ On the 6th day of July, 1880, the said commissioner, N. L. Ward, filed in tliis case, the answer of garnishees, as follows, omitting formal parts.” 'Then follows question and answer, covering, with the exhibit attached, thirteen pages of the printed abstract. The abstract states that the commissioner “filed the answer of garnishees, as follows.” If the answer contained other matter .this statement is misleading and untrue. The only reasona-* ble inference from the abstract is that the answer set out contains the entire answer'of the garnishee. No issue wa,s taken upon the answer of the garnishee. No other evidence was competent or admissible. The abstract states that the plaintiff filed a motion for judgment upon the answers of the gai\ nishees. "We think it does fairly appear that the abstract com tains all the evidence upon which the Court acted.

2. equitable garnishment, III. The garnishees in their answer deny that they have, or had at the time of their garnishment, any money, property, rights or credits in their possession, or under their control, belonging to the principal defendant. They set forth in substance that some time in the spring of 1880 the Iowa Iron and Steel Fence Company delivered and assigned to them a large number of notes and accounts, of the nominal value of about $3,000, in trust for certain creditors named, ten or twelve in number, with instructions to collect the notes and apply the money jgro rata, after deducting a reasonable amount as compensation for collecting; that the nominal amount of the debts was about half the nominal amount of the notes, but that the notes and accounts, when collected as closely as they can be, will p>ay only a small per centage on the debts; that immediately after the notes and accounts were assigned, the garnishees notified the creditors in whose interest the assignment was made, and no one has dissented or objected; but all have treated it as satisfactory • that garnishees have in their hands a balance collected on said notes and accounts of $98.28, and the principal defendant is owing them, on transactions not growing out of the assignment, $75.45.

Upon this answer we are clearly of opinion that the court erred in rendering judgment against the garnishees. The fund in their hands was held in trust for creditors named. The assignment was not coupled with any condition, and the assent of the creditors interested is presumed. Besides, they were notified of the aiTangement, and treated it as satisfactory. These notes were devoted to the payment of certain of the creditoi’s of "the principal defendant. There was nothing illegal or improper in the tx-ansaction. It was not competent for the court to defeat the arrangement. Indeed, we understand the appellee to rely solely upon the point that the abstx’aet does not purport to coxxtain all the testimony. In the view which we have taken of the case, the motion of the appellee to strike certain affidavits from the transcript, which was submitted with the case, becoxnes immaterial, and need not be determined.

Beveksed.