1 Iowa 460 | Iowa | 1855
The first matter presented, is a motion to dismiss tbe appeal, for tbe alleged reason tbat tbe judgment of tbe court below, is not such a judgment as warrants an appeal therefrom. Tbe statute gives an appeal from final judgments and decisions of tbe District Court, “as well in case of civil actions, properly so called, as in proceedings of a special or independent character.” If an appeal does not lie from a judgment discharging a garnishee, neither does it lie from one charging him. Tbe court would be very reluctant to hold, tbat there was no appeal for a-garnishee, from whatever judgment of the District Court j and it is at least doubtful, whether the party would, in a reverse case, take tbe ground implied in this motion. Under tbe provisions of tbe statute, there has arisen a case between this plaintiff and tbe garnishee, as important as that between tbe plaintiff and defendant. Tbe amount involved is no less than twenty-five hundred dollars, and there is no
We pass to the principal part of the case. The answer of •Preston, the garnishee, does not set out the bills of sale (as ■they are called) made to Adams, Crane, and Baggett; and, in this state of the answer, it cannot be seen whether they were absolute bills of sale, in payment of their debts, or -assignments to raise the me’ans to pay them. Therefore, the ■question is in relation to the balance of the property or fund, •after their payment. It is manifest that the instrument made to Preston, was an assignment only. .It recites the indebtedness to various persons, and that for the purpose of •paying -them, Hathaway delivers the stock of goods in the •store occupied by him, and authorizes Preston to sell them at public auction, allowing him to give credit on all sums over twenty-five dollars, and requiring him to account to Hathaway, for the remainder of the proceeds- of the sale, after
Tbe Code, section 1872, authorizes tbe plaintiff to controvert any facts contained in tbe answer and specified by him, and issue being thereupon joined, may be tried in tbe usual manner. And by section 977, it is enacted, tbat no general assignment of property by an insolvent, or in contemplation of insolvency, for tbe benefit of creditors of tbe assignor, shall be valid, unless it be made for tbe benefit of all bis creditors, in proportion to tbe amount of their respective claims. Tbe plaintiff (intending it under tbe above sections) alleged tbat tbe assignment to Preston embraced all tbe property of tbe defendant no.t exempt from execution, and was made with intent to binder and delay creditors, and was fraudulent in law and in fact as against said creditors. After demurrer, and motion for more specific statement, tbe plaintiff avers, tbat tbe garnishee bas in bis possession, or under bis control, property, rights, or credits of tbe defendants, and denies tbe answer, and each allegation thereof, to tbe first interrogatory, under which tbe present questions arise. Tbe plaintiff then offered evidence to show, tbat tbe assignment contained substantially all of tbe property of tbe defendants, and tbat they were indebted to other persons than those named in tbe assignment to Preston; which evidence was rejected by tbe court, and no other evidence was introduced. His counsel then sought to address tbe jury, but. tbe court, bolding tbe only issue to be on tbe truth or falsity of tbe garnisbee’s answer, and tbat there was no evidence against it before tbe jury, refused to permit them; whereupon tbe jury found a verdict for tbe garnisbee. In tbis, we think, tbe court erred. Tbe garnisbee is not com-
W,e will try to explain a little farther. Let us look at tbe position of tbe parties. Tbe garnishee says be bas no property of defendants in bis bands. Tbe plaintiff controverts this, and sajs be bas such property. Tbe answer does,not mean legally, that be literally bas none; but that be bas
It follows, therefore, that the court should have given the instruction asked by the plaintiff. This was- not refused upon the ground that it was not law, but because, as the court held, there was no evidence to which it would apply. The answer being evidence, and it being now held that the counsel have a right to address- the jury on the question of holding property, as before explained, they have the consequent right to make out from the answer, if they can, the point of fact suggested in the- instruction asked by them.. This, however, we limit at present to the first ground assigned by the counsel. We do not pass upon the second, third, and fourth grounds taken in the instructions.
Other errors arc assigned on the refusal of the testimony of McIntosh, the refusal of evidence, showing that the assignment contained all the property of Hathaway & P,ark-hurst, and that there were other creditors not named therein,, and not provided for. This cause having to be decided by two, only of the members of the court,, and the court being-.
It is considered, therefore, that tbe judgment of the District Court be reversed, and that tbe cause be remanded, with directions to proceed in accordance with this opinion.
Isbell, J., having been of counsel, took no part in the decision of this cause.