Burk v. Putman
84 N.W. 1053
Iowa
1901
Check Treatment
Deemer, T.

1 It is claimed that the legal title to certain-lots noAV in the name of Jessie D. Putman, and an interest that she claims in a partnership business in the tOAvn of Shenandoah, is fraudulent and void, as against creditors. To establish the claim of fraud, plaintiff introduced the defendants Putman, A\dio are husband and Avife, аs Avitnesses, and it is largely on their evidence that the decree of the district court is based. Aрpellants admit that, under the statute as-it now reads, this evidence was admissible, but they claim that thе statute is unconstitutional and void. The material part of the section is as folloAvs: “That section 4606 of the-Code, prohibiting husband and Avife from being a Avitness against the other, * * * except in a civil action by one-against a third party for alienating the affections of the other, be amended as folloAvs: * * * Or in any civil action brought by a judgment creditor against either husband orAvife to sеt aside a conveyance of property from one to the other, on the ground оf Avant of consideration or fraud and to subject the same to the payment of the judgment.” Sеction 1, chapter 108, Acts Twenty-seventh General Assembly. This is said to be in violation of the constitutiоn, because it favors the creditor class; because-*234it interferes with rights arising out of the domestic relation; because it does not grant immunity from criminal prosecution for fraud; and because ‍​​​‌‌‌​​​‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​‌‌​​​‍violative of the spirit, if not the letter, of the constitutional guaranties against unreаsonable searches, and in favor of absolute rights.

2 None of these reasons seems to be sound. That the legislature has plenary power to prescribe the competеncy of witnesses in all actions, limited only by certain express constitutional guaranties, is fundamental. Counselman v. Hitchcock, 142 U. S. 547 (12 Sup. Ct. Rep. 195, 35 L. Ed. 1110) ; Ralston v. Lothem, 18 Ind. 303 ; Rich v. Flanders, 39 N. H. 304; John v. Bridgeman, 27 Ohio St. 22. There is no vested right in a rule of evidence. Such rules afiEeet the remedy only, and it is within the constitutional ‍​​​‌‌‌​​​‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​‌‌​​​‍power of the legislature to change them. The same rule applies tо the competency of witnesses. Laughlin v. Com., 13 Bush, 261; Wormley v. Hamburg, 40 Iowa, 22; Drake v. Jordan, 73 Iowa, 707. The law passed by the Twenty-seventh General Assembly aрplies to every person coming within the relation and circumstances provided for, аnd is not subject to the objection that it is class legislation. McAunich v. Railroad Co., 20 Iowa, 338; Association v. Schrader, 87 Iowa, 659, and other like cases.

3 *2354 *234If the statute in question required either husbаnd or wife to give evidence against himself, and there was no statute exempting him from answering ‍​​​‌‌‌​​​‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​‌‌​​​‍questions that were incriminating in character, there might be grounds for holding it unconstitutional, under the doctrine announced in the Counselman Case. But the statute in question simply defines the competency of witnesses. Thеre is no provision requiring them to testify to any fact that would tend to convict .them of the crimе of making a fraudulent conveyance under section 5042 of the Code, as in section 4075, which rеquires answers to interrogatories tending to show fraud. Section 4612 expressly excuses' one frоm an.swering a question that would tend to criminate Mm. Neith*235er of the witnesses in this case made any suсh objections to the questions propounded to them, and the statute itself does not cоmpel them to respond to a question, truthful answer to which would tend to criminate. As already sаid, the statute fixes the ■competency of the witness, and has no reference to the сompetency of ‍​​​‌‌‌​​​‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​‌‌​​​‍the evidence sought to be elicited. The statute was in force аt the time of trial, and, as it relates to the remedy, must govern the procedure. It is not vulnerable to the objections urged, and in the absence of claim of privilege on the part of -witness, the evidence must he considered in reaching proper conclusions.

Further, it is arguеd that some of the property was exempt when transferred to Jessie D. Putman, and that variоus sums given her hy her husband, with which to acquire part of it, were also exempt. These claims, except in so far as they were recognized by the trial court, are without merit. Creditors cannоt, of course, make claim to property that would have been exempt had it remained in the hands of the debtor, nor can they subject property in the name of the wife acquired by the husband’s exempt earnings, given to her while they were exempt. But the trial court recоgnized these rules in the decree, and defendants have no just cause of complaint.

Lаstly it is argued that the evidence does not support' the decree. That claim has received due consideration, and, without setting forth the evidence on which we base our conclusions, it is sufficient to say that they accord with the ‍​​​‌‌‌​​​‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​‌‌​​​‍findings of the court. If there is any error, it was in not allowing the plaintiff greater relief than seems to have been granted. Appellants’ motion to strike out appellee’s abstract is overruled. The decree in each case is aketrmed.