197 Iowa 120 | Iowa | 1924
Plaintiff filed a reply, controverting -the answer of the garnishee, — which answer merely stated that it did not have in its possession or under its control any rights, property, or credits belonging to the defendant, — and denying that the shipment was under a negotiable bill of lading, and averring that a sight draft, drawn by the shipper on the Courteen Seed Company for' $1,650, and attached to the bill of lading, was paid by the defendant, to whom the draft and bill of lading were surrendered. Both the motion of the garnishee to release the attached property and the reply of appellant controverting the answer of the garnishee were verified. As neither the motion nor the reply is in the form of an affidavit, we assume that the verification was such as is usually attached to verified pleadings.
In addition to the recitals of the verified motion to release the attached property, O. P. Troutwein, the agent of appellee at Chariton, was introduced and examined as a witness by ap-pellee, in regard to the bill of lading. Much of his testimony was incompetent and hearsay. The shipment of the timothy seed originated at Truro. The witness never saw the bill of lading, and, of course, could not testify, from personal knowledge, whether it was a negotiable or nonnegotiable instrument. Some of his testimony is competent, and, so far as it is, it tends to support the allegations of the motion. He identified an exhibit which purported to be the original waybill, which was offered in evidence. The objection to the offer of this exhibit was general, and did not raise any question as to the sufficiency of its 'identification. The effect of Troutwein’s testimony was that the form of the waybill was that used when a negotiable bill of lading is issued. He admitted on cross-examination that he had no personal knowledge as to the negotiable character of the bill of lading, further than that the consignor was also
That the timothy seed was in transit as an interstate shipment is not questioned. A negotiable bill of lading' is defined by the act of Congress of August 29, 1916, as follows:
“That a bill in which it is stated that the goods are consigned or destined to -the order of any person named in such bill is an order bill. Any provision in such a bill or in any notice, contract, rule, regulation, or tariff that it is nonnegotiable shall be null and void and shall not affect its negotiábility within the meaning of this act unless upon its face and in writing agreed to by the shipper.” Section 3, Chapter 415, Act of August 29, 1916.
To the same effect, see Section 3138-b4, 1913 Supplement to the Code.
Goods consigned by the owner, to whom an order bill of lading is issued, are not subject to attachment by garnishment or otherwise, while in the possession of the carrier. Section 23, 39 Statutes at Large 542, is as follows:
“That if goods are delivered to. a carrier by the owner or by a person whose act in conveying the title to them to a purchaser for value in good faith would bind the owner, and an order bill is issued for them, they cannot thereafter, while in the possession of the carrier, be attached by garnishment or otherwise or be levied upon under an execution unless the bill be first surrendered to the carrier or its negotiation enjoined. The carrier shall in no such case be compelled to deliver the actual possession of the goods until the bill is surrendered to him or impounded by the court. ’ ’
To the same effect, see Section 3138-b23, 1913 Supplement to the Code.
It follows, of necessity, from the foregoing provisions of both the Federal- and state statutes, that, if the attached property was consigned to appellee in this state for transportation to a point outside thereof, and a negotiable bill of lading was-issued therefor, it was not, while in the possession of appellee, subject to attachment, either by garnishment or levy thereon.
“A motion may be made to discharge the attachment or any part thereof, at any time before trial, for insufficiency of statement of cause thereof, or for other cause making it apparent of record that the attachment should not have issued, or should not have- been levied on all or on some part of the property held.”
“But in order to justify the discharge of property on a motion of this kind, so summary in its character, the' case should be made clear and entirely satisfactory; otherwise the party should be left to the other and ordinary means, by the proper áetion, for testing the liability of the property levied upon, to be seized under the writ. In this case the affidavits leave it uncertain whether the homestead was actually occupied as such prior to the time the debt sued on was incurred.” '
This statement of the rule has been approved in later- cases. Union County Inv. Co. v. Messix, 152 Iowa 412; Cox v. Allen, 91 Iowa 462; Tidrick v. Sulgrove, 38 Iowa 339; Franke v. Kelsheimer, 180 Iowa 251.
Treating the above verified motion of the garnishee and the verified reply of the appellant controverting its answers as such garnishee as in the nature of affidavits, can it be said that they, when supplemented by the competent evidence of Trout-wein, made it apparent of record that the attachment should not
We have held that no pleading controverting a motion to discharge attached property is required or allowed. Joyce v. Miller Bros., 59 Iowa 761. This holding was not intended, however, to operate as a denial of the right of the plaintiff to meet the showing of the moving party with a countershowing of the facts as claimed by him. The mere denial by appellant that the bill of lading under which the shipment was being carried was negotiable, affords no assistance to the court whatever. If it was an order bill, as stated in the motion, then, under the statutes cited, the property could not be held under either the garnishment or the levy of the attachment thereon. Appellant' does not in argument claim anything for the allegations of his reply controverting the answer of the garnishee, that the bill of lading was forwarded by the consignor, with draft attached, to Milwaukee, and the draft paid by the defendant at that point, in support of which allegations no evidence was offered. A summary proceeding by motion for the discharge of attached property in a law action is essentially at law, and the finding of the court below upon the questions of fact presented will be given the same weight as the verdict of a jury, taking into account, of course, the quantum and character of the proof' required by the statute. The case is not triable de novo in this court. If, as stated above, the bill of lading was drawn to the order of the shipper, satisfactory proof of this fact would be sufficient to justify the discharge of the attached property. An uncontroverted affidavit of that fact, attached to the motion,
This conclusion makes the consideration of the motion of appellee to dismiss the appeal unnecessary.
The judgment of the court below, ordering the attached property released, is — Affirmed.