Assignment of Cuddy v. Becker, Mayer & Co.

146 Iowa 250 | Iowa | 1910

Deemer, C. J.

On the 11th day of January, 1909, one W. O. Cuddy, who had theretofore been engaged in business at the town of Hedrick in Keokuk County^ Iowa, for a number of years, made an assignment to one W. II. Young for the benefit of his creditors. Young immediately accepted the assignment, and, discovering that the goods assigned were heavily mortgaged, he at once made application to Hon. W. Gr. Clements, one of the judges of Keokuk County, for an order to turn the mortgaged goods over to the mortgagees. Judge Clements made an order that the matter be heard at the coming February term of the Keokuk County district court, notice thereof to be given by one publication in a newspaper at least five days prior to the hearing. At the time so fixed certain general creditors, among whom were appellants herein, appeared and filed objections against turning the mortgaged property over to the mortgagees. The mortgagees were also brought in, and they joined with the assignee in asking that the property be turned over. They admitted the making of the mortgage to them, and joined with the assignee in asking a delivery of the property. The general creditors filed a motion to postpone the hearing in order that they might secure the testimony of the assignor, Cuddy; but this was denied and exception taken. The application was then submitted to the court, resulting in an order on the assignee to turn over the mortgaged property. From the order so made, the general creditors appeal.

1. Chattel mortgages: defective description: possession by mortgagee: effect. I. One of the points relied upon for a reversal is that the description of the mortgaged property as set forth in the mortgage was insufficient to cover the property turned over to the assignee. That description is as follows: “All of my stock of merchandise consisting of clothing, hats, caps, trunks, valises, gents’ furnishing goods, and all other articles of merchandise, including store furniture and fixtures now owned and kept by me for sale in the one story brick building situated on Lot No. 13 in Block No. 7 in the town of Hedrick, Iowa. Also on all goods and merchandise that may be added to said stock from time to time by me in the future, also book accounts, notes and evidence of debt due and owing to me at this time, or that may be made in the future in the usual course of trade.” Beyond question this description was sufficiently definite to cover all the property, unless it- be the books of account, notes and other evidences of indebtedness. As to these, the testimony shows that the mortgagees took actual possession of the books of account and notes belonging to Cuddy, and attempted to be covered by the mortgage the day before the assignment was executed. This cured any defect in the description, even if it be conceded that the description would otherwise be insufficient. Kelley Maus Co. v. Andrews, 102 Iowa, 119.

2. Same: assignment for benefit of creditors: rights of creditors. Appellants were nothing more than general creditors when the mortgagor turned this property over, and they have no greater rights through the assignee than assignor would have had. In re Wise, 121 Iowa, 359; Kelley case supra; Meyer v. Evans, 66 Iowa, 119.

3. Same: execution of instruments: pleadings: waiver of formal proof. II. It is said that, as the mortgagees made no proof of their notes and mortgages or of any indebtedness to them from Cuddy, the order was erroneous. These parties were brought into the case by order of court upon the assignees’ application for an order to turn the property over to them, pn ^ appijcati0n the fact of the making of the notes and mortgages was set out, and the mortgagees, when they came in, admitted the making thereof. The objectors to the application did not deny the making of the notes or mortgages and in no way attacked the same, save as they pleaded insufficiency of the description and an estoppel on the mortgagees from relying upon their mortgages. It will thus be seen that the making of the notes and mortgages was admitted, and no further proof thereof was required.

4. Assignement for benefit of creditors: rights of assignee. III. The assignee for the benefit of creditors was an officer of court, and had the right to apply thereto for any order which he might care to have made m the administration ox his trust. Code, section 307; Hamilton v. Mercer, 84 Iowa, 537.

5. Appearance: waiver of objection to proceedings. IV. The trial court made an order for the hearing in a county other than the one where the assignment proceeding was pending, and this is complained of. Suffice it to say in answer this that the hearing was had in Keolcuk County, and that the appellants, who are now raising the point as to the sufficiency of the order for the hearing and notice, voluntarily appeared in the proceeding, and had their day in court. This cured the defects, if there were any, in the prior proceedings. The trial court had jurisdiction both of the persons and of the subject matter, and any prior defects in the proceedings were waived.

6. Continuance: witness:of discretion. The matter of the postponement of the hearing was .within the sound discretion of the court. The application therefor was based upon the absence of the assignor, Cuddy, whose testimony the appellants said they were desirous of having. In the show}ng ma¿e for the postponement it appeared that Cuddy was in Des Moines, but a few hours’ ride from Sigourney, where the trial was had, and there was no showing of any .attempt to secure his presence or his testimony. Moreover, the showing as to what they expected to prove by the witness is in these words: “That I can not say what I may be able to prove by W. O. Cuddy, but believe that his evidence will materially aid in solving and reaching the right decision in this case. That I want to show by him when these notes that are claimed by the mortgagees were executed and whether or not there are any other debts made after the execution of the mortgage, and their consideration, and to show the agreement and understanding between the mortgagees and himself before this assignment was made, and where the property is and in whose possession and the terms and arrangements by which said possession was obtained.” The affidavit for a continuance further recited: “That I expect to be able to have the presence of Mr. Cuddy here within a short time from this date, and I know of no other witness by which said facts can be so fully proven.” No further attempt was made to get this witness. In view of this showing, it is manifest that the trial court did not abuse its discretion in overruling the motion to postpone. The objectors offered no testimony in support of their claim of estoppel, or to establish any other issue in the 'case. The making of the mortgages, was admitted, and,, in addition thereto, the record of the same was offered in evidence. The trial court found that the property was not sufficient in value to -satisfy the mortgage indebtedness, and ordered it turned over to the mortgagees. This finding has ample support in the testimony.

There is no error in the record, and the orders must each and all be, and' they are, affirmed.