10 Iowa 498 | Iowa | 1860
The first question presented is, whether the court had jurisdiction over the parties against whom such judgment was rendered.
The attachment was against D. C. Bancroft, and the garnishee process was against J. P. Scott. The notice was directed to and served upon him. The firm of Barney, Scott & Co. were not notified that they were a party to the proceeding ; nor does it appear by any pleading, or process, or in any other manner, except only as stated by the officer in his heading to the answer of the garnishee, that J. P. Scott was a member of said firm. If the notice of garnishment had been directed to the said firm, and served upon J. P. Scott as one of the members of such firm, and an answer made in their behalf, the court would not have erred in rendering judgment as it did, provided such answer justified such a finding. A garnishee, under the provisions of the Code,
The second question presented is, whether (admitting that the answer of J. P. Scott was made in behalf of Barney, Scott & Co., and that such firm should be bound by such answer) there is sufficient to justify the court, upon the answer thus made, in finding that the said firm were in any manner indebted to said Bancroft. The facts, which appear from said answer, are about as follows: Bancroft was indebted to Barney, Scott & Co. in the sum of about $120, to secure which, he gave to said firm a mortgage upon certain personal property, conditioned that if such money vras not paid when due, the property mortgaged was to be sold, and the proceeds thereof applied to the payment of said claim. Bancroft having failed to pay when the claim became due, Barney, Scott & Co. caused the sheriff of Dubuque county to expose said property for sale, in pursuance of the conditions of said mortgage ; and they became the purchasers at such sale, bidding for the property mortgaged a sufficient sum to satisfy their claim. The property sold was delivered to them by the sheriff. Barney, Scott & Co. caused the property thus purchased and delivered to them, to be transferred to an auction room and again exposed to sale. The proceeds of this sale amounted to $57 more than those of the sheriff’s sale. This sum the said firm donated to the wife of said Bancroft. Whether the second sale took place and the $57 were paid to the wife of Bancroft, before or after the
The answer is uncontroverted and must be taken as true. Scott, in his answer, says that the sale was made in good faith, not for the purpose of screening the property from other creditors, but for the sole purpose of paying the debt due by Bancroft. If the sale was made in good faith, and in conformity with the provisions of the mortgage, it passed the absolute title to the purchasers, although they were the trustees. They were entitled to the possession and control of the property mortgaged without such sale. A chattel mortgage invests the mortgagee with the title to the property, which can only be defeated by a compliance with the conditions of the mortgage; and upon a failure to comply with those conditions, the mortgagee becomes the absolute owner. 3 Gr. Greene 586.
The sale having been duly made, and the property duly delivered to the purchasers, they had a right to dispose of the same as they pleased; and were not accountable to Bancroft or any one else for any profits thereafter accruing from such purchase.
It is also submitted by the appellants, that the judgment of the District Court is erroneous, for the reason that the record does not disclose the fact that any judgment was rendered against the defendant in the main action. The right of a plaintiff to a judgment against a garnishee, does not exist until there is final judgment against the defendant.in the attachment. It does not appear from the record in this case that a judgment was ever obtained by plaintiff against Bancroft. Whilst every presumption is in favor of the reg
Judgment reversed.