Buchanan County Bank v. Cedar Rapids, Iowa Falls & Northwestern Railway Co.

62 Iowa 494 | Iowa | 1883

Rothrock, J.

The amount in controversy does not exceed

$100, and the case eomes to us upon a certificate from the i.baii,boads: cpnde?4'a-y: person under contract: rights oí the public: garnishment. judge, of which the following is a copy: “ 1. Where the above named garnishee in construet-ing its line of railway contracted with an individ- , ,. . , „ . nal to furnish, lor a given sum per mile, its right ° 1 ° 0f way at bis own expense, which he was by the terms of said agreement to procure, and did procure, by purchase and condemnation to the garnishee, in the name of said garnishee, and when, after condemnation had on June 27, 1881, the land-owner, on July’ 10, 1881, appealed from the award of the sheriff’s jury of $250, which had been paid to the sheriff and garnished by judgment creditors other than plaintiff, and plaintiff having, on the seventeenth day of July, 1881, served the garnishment on garnishee, as shown by the agreed statement of facts herein, can the railway company, in whose favor the condemnation is made, be garnished by another judgment creditor, (the plaintiff,) and held to pay to such creditor the amount, additional to the deposit with the sheriff, which the party furnishing its right of way paid to the land-owner for a deed for right of way through the property, in the absence of actual knowledge of any garnishment?

“2. Where .condemnation proceedings were had in the name of the garnishee herein, and the award was paid to the sheriff and an appeal taken by the land-owner, who was the plaintiff’s judgment debtor, and when plaintiff garnished the railway company condemning, could the raihvay company pur chase for casb during tlie pendency of such appeal, and take a deed for right of way, without becoming liable to pay any sum in excess of the award to the garnisheeing creditor under the said process of garnishment?

“ 3. Under the facts shown in the first question, supra, and in the agreed statement of facts, was there ever any indebtedness due, or to become due, from the railway company to the defendant, Cronan, such as under our statute could be the subject of garnishment?

“ 4. When the garnishee condemned the right of way, paid the amount of the assessment to the sheriff, and took possession, did such proceedings, where the land-owner appealed from the amount of the assessment, create a liability on the part of the railway company which could be the subject of garnishment? Is not such liability, if any, a contingent one, and under our statute is a contingent liability the subject of garnishment?

“5. Under the facts stated in the fourth question, supra, and in the agreed statement of facts, are not any increase of damages that may he awarded upon an appeal, over and above the amount found by the sheriff’s jury and deposited with the sheriff by the railway company, unliquidated damages, and as such not liable to be garnished?

“6. Was service of the notice of garnishment upon A. W. McFarland, who was employed by said Dows, the party furnishing the right of way under contract, as set out in the agreed facts, as the local attorney of garnishee in Humboldt county for the purpose of assisting Dows in' procuring such right of way through Humboldt county, such service of notice of garnishment as would he good and sufficient service of garnishment upon the railway company, garnishee?

“ 7. Upon the agreed facts in this case, was the garnishee liable for the sum of $50, as held by the trial court in its judgment herein.”

We do not think that the employment of Dows by the railroad company to procure its right of way at a fixed price per mile is at all material in determining the rights of the parties. Dows did not condemn land for right of way so far as the public was concerned.

The railroad company was the party liable to land-owners for compensation for right of way. Land-owners could sue the railroad company and enjoin it, and take all other proper legal action pertaining to the right of way. But they could take no action against Dows. It follows that, if a land-owner had a valid claim, the railroad company would be the proper party to garnish, and, upon the garnishment being made, all of its agents, whether employed to procure right of way at a stated sum per mile, or otherwise, were bound to take notice of the garnishment, and govern themselves thereby.

It is claimed that the court should have held that Cronan’s claim for an increase of compensation, which he was asserting by his appeal, was a mere contingent liability, and not subject to garnishment. We think otherwise. Cronan claimed by his appeal that-he was entitled to more than $250 compensation. It is true, this was contingent upon a trial in the circuit court, but the garnishee removed this contingency by paying Cronan $50 in excess of the award of the sheriff’s jury. This was the legal effect of the transaction between Cronan and the railroad company. It was not a new arrangement having no connection with the original proceedings to condemn the right of way. Its effect was to pay Cronan $50 in addition to what had already been paid.

The foregoing observations, we think, determine all questions certified, excepting the sixth, which involves the suifi-. ciency 2. appeal to court mess certiffcate must be specific. of the service of the garnishment notice on McFarland. We are referred by that interrogatory to certain agreed facts to determine, in , „ ’ part at least, the nature and scope or Mchar-land’s agency. We have repeatedly held, and our rules require, that certificates in this class of cases must set out the questions which it is desirable shall be determined. The rule is not complied with by referring ns to the record in the case to determine what the question is. We find no error in the case.

Affirmed.