Des Moines Savings Bank v. Colfax Hotel Co.

88 Iowa 4 | Iowa | 1893

Rothrock, J.

i. garnfshment: t: garmsiiee. I. The case has once before been in this court upon an appeal by the plaintiff. See 79 Iowa) 497. On the first trial it was held fry the district court that no action could majnt.ained foy the appellee, because the judgment upon which the garnishment process .was based was satisfied. It was held by this court that the judgment was not satisfied, and that -“the plaintiff was entitled to a finding as to the indebtedness of the garnishee, * * . *” and the cause was remanded to the district court for such a finding. It is unnecessary to set out the facts upon which that ruling was based. They will be found in the opinion on the former appeal, and the only question left for determination was the amount of the garmishee’s indebtedness, if any.

' The garnishee was served with process in August, 1887. Before that date, and in 1885, the Colfax Hotel Company executed a deed of trust to Thomas S. Wright upon all its hotel property and all sums of money owing to the hotel company. It is claimed by the appellant that this deed of trust operated as an assignment of any debt due by him to the company, and that there was, therefore, no ground for the garnishment. A point is made whether the trust deed was valid as against an attaching creditor. In view of the undisputed facts of the case, it is not necessary to determine that question. It appears that before the appellant made this question in the district court, the trustee in the trust deed, the hotel company, and the beneficiaries under the trust deed, filed pleadings in which they all united in the demand that judgment should be rendered for the plaintiff for whatever amount should be found due to the hotel company from the garnishee. Under this waiver of any right which the trustee may have had to collect the debt, the debtor is in no position to urge that he is bound to pay his debt to the trustee, or to any one other than the plaintiff in this action.

2-_: Hawiityof garmshee. II. It is next urged that the garnishee should have been discharged, because the investigation involved an adjustment of a matter of account between the Colfax Hotel Company and the garnishee, which could not be adjudicated in an action at law, and, being of equitable jurisdiction, the garnishee can not be required to try the issue in a garnishment proceeding. It is not to be denied that there are cases where an accounting between parties may be a subject of equitable jurisdiction. ’ The facts in this ease, however,' show plainly that the matters in controversy were not such as required their determination by a court of equity. We need not set out the facts. It is enough to say that, if an action had been brought against the garnishee by the hotel company, it could not have been maintained as a suit in equity. It was a plain matter of account, in no way involved, and it would have been the right of the plaintiff to have demanded á trial by jury. There was really but one controlling question in the case, and that was whether the garnishee was a subscriber to the capital stock of the hotel company in the sum of three thousand dollars. There were no such complicated transactions as were held to be proper subjects of equitable jurisdiction in the cases of Blair Town Lot and Land Co. v. Walker, 50 Iowa, 376; Burt v. Harrah, 65 Iowa, 644.

• 8‘ densef a'dmlsl sl0nsIII. It appears that one Norfolk was at one time employed to make an investigation of the account between the garnishee and the Colfax Hotel Company. He made up this account with the assistance of one Staynor, who was secretary of the hotel company. Norfolk made his report to a meeting of the directors, of the company, at which the garnishee was present, and presided at the meeting as president of the board. The report of Norfolk was read at the meeting, and it showed that Clark, the garnishee, was indebted to the company in the sum of about two thousand, six hundred dollars. Complaint is made because the court allowed this report to be introduced in evidence. The evidence shows quite conclusively that the garnishee heard the report read and that he did not deny that he was indebted to the company. The statement of account, and Clark’s reply thereto, was competent evidence, the same. as if the account had been in the form of a conversation with Clark.

4. _:_. IV. Staynor, the secretary of the hotel company, .was examined as a witness, and was asked this question: “As far as you know or have been able to ascertain, had Mr. Clark paid any sums of money on account of the Colfax Hotel Company, other than those that are credited to him in this account!” The question was objected to, the objection was overruled, and the garnishee excepted, and the witness answered: “He has paid none that I have been able to ascertain, aside from those.” In view of the relation of the witness to the affairs of the company, we do not think that this evidence was erroneously admitted. The business of the company was presumably kept in proper books, and it was competent for the secretary of the company to state whether he paid any sums of money on account of the company other than those stated in the account.

„ „ 5. Contracts: ti^\so bssi6c£:' validity. V. There can be no doubt that the jury was fully warranted in finding from the evidence that Clark subscribed for three thousand dollars of capital stock of the company. The stock was not subscribed in a stock book, and the names of the stockholders were not signed to any written agreement to take stock. The manner in which the contract to take stock was entered into is fully set forth in the case of Colfax Hotel Co. v. Lyon, 69 Iowa, 683, in which it was held that a parol agreement to take stock in this same corporation was valid. If the garnishee is liable as a stockholder, it is under the same facts as under the cited case, and there was no error in any part of the charge to the jury in. relation to the garnishee’s liability. Indeed, the instructions to the jury - appear to us to be very fair to the appellant.

6. trqciuction of" Inai snbmission. VI. Further complaint is. made because the appellant was not allowed to offer additional evidence some three, days after the evidence in the case was closed. This was a matter within the discretion of dhe court, and the record does not disclose any abuse of discretion. The case • demands no further consideration. The judgment of the district .court is aeeiemed.