A. A. Ball & Co. v. Cedar Valley Creamery Co.

98 Iowa 184 | Iowa | 1896

Given, J.

The right to intervene in an action is given, in section 2688 of the Code, “before or after issue has been joined in the cause, and before the trial commences.” This petition shows, that this case had gone to judgment, and that execution was issued thereon, before the petition was filed. It is clear, therefore, that the petition could not be filed under this section. Section 3016 provides that persons other than the defendant may, before the sale of attached property, or before the payment to the plaintiff, of the proceeds thereof, or any attached debt, present his petition disputing the validity of the attachment, or stating a claim to the property or money, or to an interest in, or lien on it, under any other attachment or otherwise, and that the petitioner’s claim shall be, in a summary manner, investigated. Section 3051 provides, that in proceedings by garnishment on execution, the plaintiff may, if the garnishee is called into court, have the case docketed against him upon his answer to the officer; that issue may be made, and “the proceedings shall be the same as under garnishment on attachment, as near as the nature of the case will allow.” This is not a proceeding by attachment, nor by garnishment on execution, and therefore, is not authorized by either of these sections. Appellant cites and relies upon Edwards v. Cosgro, 71 Iowa, 297 (32 N. W. Rep. 350). In that action a debtor was garnished on execution. He paid the amount to the officer, without answering, and Tatlock filed a petition, claiming the money. It was held that the petition was properly filed under said section 8051, that being a proceeding by garnishment under execution. The question here presented was not involved in that case. It is said in that case, as to section 8051: “The effect of this section is to give to third parties, who claim the property or money seized on execution, or by garnishment on execution, the right to intervene and assert their claim at the time and in the manner prescribed by section 8016.” It was inaccurate to say that section 8051 applies to property or money seized on execution. It is expressly limited to “proceedings by garnishment on execution.” As the question here presented was not involved in that case, this statement, so far as it relates to property or money seized on' execution, other than by garnishment, is not controlling. In such a case, as said in Bank v. Gill, 50 Iowa, 428: “If the interveners have rights which require protection, they should commence an original action, in the ordinary way, for that purpose.” The motion was properly sustained. — Affirmed.*